DITTMAR & DITTMAR

Case

[2020] FCCA 2373

31 August 2020


FEDERAL CIRCUIT COURT OF AUSTRALIA

DITTMAR & DITTMAR [2020] FCCA 2373
Catchwords:
FAMILY LAW – Parenting – where there is one child of the relationship – whether either parent poses an unacceptable risk to the child – where there are allegations of sexual abuse of the child – where it is found one parent does not see any benefit in the child maintaining a meaningful relationship with the other.  

Legislation:

Family Law Act 1975 (Cth), Part VII, ss.4(1), 4AB, 60B, 60CA, 60CC, 61DA
Evidence Act 1995 (Cth), s.140

Cases cited:

K & B (1994) FLC 92-478
M v M (1988) CLR 69
MRR & GR [2010] HCA 4
Napier v Hepburn (2006) FLC 93-303

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 (16 December 1992)
Briginshaw v. Briginshaw[1938] HCA 34; (1938) 60 CLR 336, at p 362; Marsden & Winch (No. 3) [2007] FamCA 1364 (21 November 2007).

Applicant: MR DITTMAR
Respondent: MS DITTMAR
File Number: BRC 189 of 2019
Judgment of: Judge Middleton
Hearing dates: 5 & 12 August 2020
Date of Last Submission: 17 August 2020
Delivered at: Brisbane
Delivered on: 31 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Bunning
Solicitors for the Applicant: Law Legal Practice
Counsel for the Respondent: Ms McLennan
Solicitors for the Respondent: Cranston McEachern Lawyers

ORDERS

  1. That the parents have equal shared parental responsibility for the child X born in 2017.

  2. That the child shall live with the father. 

  3. Forthwith the mother is to contact Dr B and provide to him a copy of the reasons for judgment.  The mother is as soon as possible to illicit from Dr B the name of either a psychologist or psychiatrist (referred to as ‘the practitioner’) (preferably one in the City C area) to assist her with the recommendations in the report from Dr B dated 8 July 2019 and the reasons for judgment of the court.  In the event that Dr B does not provide to the mother the name of a practitioner to the mother within 7 days of her correspondence, then the mother be at liberty to choose a practitioner (apart from Ms D). 

  4. The mother shall, upon either being provided with the name of the practitioner in order 2 or if she is required to elect (pursuant to order 2):  

    (a)Provide to the practitioner a copy of the psychiatric report of Dr B and the reasons for judgment. 

    (b)Provide within 7 days of engagement with the practitioner the name of the practitioner to the father in writing. 

    (c)Engage with the practitioner at a frequency and for a duration as recommended by the practitioner. 

    (d)All engagement by the mother with the practitioner be at the mothers sole cost. 

    (e)Engage with the practitioner to deal with the issues raised by Dr B in his report and by the court in the reasons for judgment. 

    (f)At such time as the practitioner is of the view that the mother no longer requires their assistance, the mother shall illicit from the practitioner correspondence which sets out the dates of the mother attendance up on the practitioner, the matters address by the counsellor and that the mother no longer needs to see the practitioner. 

  5. Until such time as the mother provides correspondence from the practitioner pursuant to order 4(f). the child shall spend time with the mother at all times as the parties agree in writing and failing agreement: 

    (a)Every week on a Saturday for 2 hours at E Contact Centre, City F (or a Sunday if Saturday is not available) with the mother to be at liberty to also have her parents attend the supervised time but all time between the child and the mother/her parents shall be supervised by E Contact Centre. 

  6. Once the mother has provided to the father a letter from the practitioner engaged that she no longer requires the assistance of the practitioner pursuant to order 4(f). then the child shall live with each party at all times as may be agreed but failing agreement as follows; 

    (a)X shall live with the father. 

    (b)X shall spend time with the mother: 

    (i)From 3:30pm on Friday to 5:00pm on Sunday each alternate week commencing the first weekend after the information pursuant to order 4(f) is provided to the father (with such time to commence at 3:15pm on Thursday if Friday is a public holiday and/or conclude at 5:00pm on Tuesday if Monday is a public holiday). 

    (ii)In the gazetted school holidays in September and December/January 2020 in accordance with paragraph 5b.i. of these orders and on Wednesday each week from 9:00am to 2:00pm with changeover to occur at Town G McDonalds. 

    (iii)In the gazetted school holidays in 2021 and onwards; 

    1.For only half of the April and September gazetted school holiday periods being the first half in odd numbered years and the second half in even numbered years. 

    2.For all of the June/July gazetted school holiday periods. 

    3.For weeks 3, 4 and 6 of the December/January gazetted school holiday periods each year. 

  7. For the purpose of school holiday time the following shall apply: 

    (a)The first day of the school holiday period commence at 3:00pm on the last day of the gazetted school term. 

    (b)The last day of the school holiday period is the Sunday immediately before the first gazetted day of the school term. 

    (c)Changeover in the middle of school holidays time shall occur on the middle Saturday of the school holiday period. 

    (d)Any provision for time in these orders that is inconsistent with school holiday time shall be suspended during gazetted school holiday periods. 

  8. Unless provided otherwise in these orders; 

    (a)The mother shall collect the child from the father at Town G McDonalds at the commencement of time; and 

    (b)The father shall collect the child from the mother or her nominee a City C McDonalds at the conclusion of time. 

  9. The father and the mother shall keep each other informed at all times of their residential address and mobile telephone number and shall notify the other in writing of any change within 72 hours of that change. 

  10. The mother and father shall keep each other informed of any medical emergency or major illness involving the child that occurs during periods when the child is residing with each of them. 

  11. This order shall act as an authority for school that the child may attend from time to time to provide each of the parents with all information relating to the child’s progress at school including school reports, newsletters and photographs. 

  12. The child shall not be relocated out of the Town G area without the written consent of the parties or an order of the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC189 of 2019

MR DITTMAR

Applicant

And

MS DITTMAR

Respondent

REASONS FOR JUDGMENT

Background

  1. This is a parenting application concerning X born in 2017 (aged 3 years) (the child). 

  2. The applicant father is 33 years old (the father) and the respondent mother is 32 years of age (the mother).  The parents met in 2005/2006, married in 2008 and separated on a final basis in either late 2017 (the mother’s case) or January 2018 (the father’s case).  Nothing turns on whether the parties separated in late 2017 or January 2018. 

  3. There is a domestic violence order in place which expires on 30 October 2023.  That protection order was made by consent and without admissions and names the child as a protected person. 

  4. The father brought the application in circumstances where he was not seeing the child.  Orders were made for the child to spend time with the father supervised at E Contact Centre and for the parties to each have a psychiatric evaluation.  A family report was also ordered. 

  5. On 12 July 2019 I made an order for the child to spend unsupervised time with the father each alternate Saturday.  On 11 December 2019 the matter was set down for trial to commence in July 2020. 

  6. On 31 January 2020 the father brought an application in a case in circumstances where the mother had unilaterally withheld the child.  On 4 March 2020 orders were made by consent for the father to continue to have unsupervised time with the child. 

  7. On 21 July 2020 the mother filed an application in a case seeking an order that the child’s time with the father again be supervised.  That application was dismissed on 22 July 2020.  The matter was listed for trial to commence on 5 August 2020 due to the COVID-19 pandemic. 

  8. The mother makes allegations that the father poses an unacceptable risk of harm to the child and the father makes allegations that the mother poses an unacceptable risk to the child. 

  9. The father seeks an order that the child live with him and spend supervised time with the mother until such time as the mother has successfully engaged in counselling and provides a report that she no longer is required to undertake counselling.  Thereafter the father seeks an order the child spend each alternate weekend with the mother and half school holidays. 

  10. The mother seeks an order that the child live with her and spend supervised time with the father until such time as he is 18 years old. 

  11. For the reasons that follow I have decided that the child should live with the father, that the child spend supervised time with his mother, that the mother engage in counselling as recommended by Dr B until her counsellor determines it is no longer required, that thereafter the child spend unsupervised time with his mother each alternate weekend and half school holidays. 

The Issues

  1. The issues for determination are: 

    1)does the father pose an unacceptable risk of harm to the child due to; 

    a)alleged sexual misconduct with schoolgirls; 

    b)alleged sexual abuse of the child; 

    c)alleged perpetration of domestic violence including the rape of the mother; 

    d)his pornography viewing; 

    e)allegedly communicating to the child to keep secrets from his mother. 

    2)does the mother pose an unacceptable risk of harm to the child due to: 

    a)exposing the child to all of the allegations relating to the father; 

    b)the mother’s unwavering view that the father is a paedophile; 

    c)the alleged failure of the mother to facilitate a meaningful relationship with the father; 

    d)the mother’s failure to manage her own anxieties and emotions and protect the child from those; 

    e)the mothers belief that she could not see any benefit in the child maintaining a meaningful relationship with the father. 

The Material

  1. The father relied upon the following documents: 

    1)his trial affidavit filed 10 July 2020; 

    2)affidavit of the paternal grandmother filed 10 July 2020; 

    3)further amended initiating application filed 3 August 2020; 

    4)affidavit of Ms H filed 1 August 2020; 

    5)further affidavit of the father filed 1 August 2020; and 

    6)further amended case outline filed 1 August 2020. 

  2. The mother relied upon the following documents: 

    1)her response filed on 20 March 2019; 

    2)the notice of risk filed on 20 March 2019; 

    3)trial affidavit of the mother filed 10 July 2020; 

    4)affidavit of the maternal grandfather filed 10 July 2020; and 

    5)case outline filed on 29 July 2020. 

  3. The mother attempted to rely on an affidavit filed by Ms D, a psychologist.  The matter was originally listed for one-day commencing 5 August 2020.  The mother had been put on notice by the father that Ms D was required in person.  On the first day of trial the mother’s counsel brought an application for Ms D to give her evidence by telephone.  That application was opposed by the father’s counsel and I ultimately decided that Ms D would be required in person. 

  4. The matter was adjourned until 12 August and when adjourning the matter I made it very clear that Ms D would be required to attend court in person.  Notwithstanding a clear direction the mother’s lawyer wrote to the court on the evening prior to 12 August again seeking leave for Ms D to give her evidence via the telephone.  That correspondence was brought to my attention however I did not read any of the documents. 

  5. On 12 August the mothers counsel once again brought an application for Ms D to be given leave to appear by telephone.  Once again that application was opposed. 

  6. Ms D, a psychologist, had clearly allowed this child to be present whilst the mother openly discussed her very negative view of the father including discussion of the alleged rape of the mother by the father, the alleged sexually inappropriate relationship the father had with schoolgirls and the alleged pornography addiction the father had.  I had some concerns about the bona fides of Ms D. 

  7. On 5 August 2020, Ms D’s notes were tendered as an exhibit (Exhibit 4).  The final document in the exhibit is an email from Ms D to the mother where in Ms D gives the mother advice as to who may be of assistance to the mother at trial. 

  8. In the report annexed to Ms D’s affidavit it is clear that Ms D has made adverse findings about the father and diagnosis concerning the father without ever having spoken to him or indeed reading any material relating to him. 

  9. I was satisfied once again that Ms D would be required to give her evidence in person as there were issues of credit relevant to her evidence. 

  10. The mothers counsel ultimately informed the court Ms D would not be made available because she could not travel and in those circumstances would not be relying upon her evidence. 

  11. The court also had the benefit of a report from Dr B annexed to his affidavit filed 11 July 2019 and a family report from Ms J dated 26 June 2019. 

The Orders Sought

  1. The father sought the following orders; 

    1)The child shall live with the father.

    2)Forthwith the mother is to contact Dr B and provide to him a copy of the reasons for judgment. The mother is as soon as possible to illicit from Dr B the name of either a psychologist or psychiatrist (referred to as ‘the practitioner’) (preferably one in the City C area) to assist her with the recommendations in the report from Dr B dated 8 July 2019 and the reasons for judgment of the court. In the event that Dr B does not provide to the mother the name of a practitioner to the mother within 7 days of her correspondence, then the mother be at liberty to choose a practitioner (apart from Ms D).

    3)The mother shall, upon either being provided with the name of the practitioner in order 2 or if she is required to elect (pursuant to order 2):

    a)Provide to the practitioner a copy of the psychiatric report of Dr B and the reasons for judgment.

    b)Provide within 7 days of engagement with the practitioner the name of the practitioner to the father in writing.

    c)Engage with the practitioner at a frequency and for a duration as recommended by the practitioner,

    d)All engagement by the mother with the practitioner be at the mothers sole cost.

    e)Engage with the practitioner to deal with the issues raised by Dr B in his report and by the court in the reasons for judgment.

    f)At such time as the practitioner is of the view that the mother no longer requires their assistance, the mother shall illicit from the practitioner correspondence which sets out the dates of the mother attendance up on the practitioner and that the mother no longer needs to see the practitioner.

    4)Until such time as the mother provides correspondence from the practitioner pursuant to order 3f. the child shall spend time with the mother at all times as the parties agree in writing and failing agreement:

    a)No time for a period of six weeks;

    b)Thereafter every week on a Saturday for 2 hours at E Contact Centre, City F (or a Sunday if Saturday is not available) with the mother to be at liberty to also have her parents attend the supervised time but all time between the child and the mother/her parents shall be supervised by E.

    5)Once the mother has provided to the father a letter from the practitioner engaged that she no longer requires the assistance of the practitioner pursuant to order 3f. then the child shall live with each party at all times as may be agreed but failing agreement as follows;

    a)X shall live with the father.

    b)X shall spend time with the mother:

    i.From 3:30pm on Friday to 5:00pm on Sunday each alternate week commencing on 8 August 2020 (with such time to commence at 3:15pm on Thursday if Friday is a public holiday and/or conclude at 5:00pm on Tuesday if Monday is a public holiday).

    ii.In the gazetted school holidays in September and December/January 2020 in accordance with paragraph 5b.i. of these orders and on Wednesday each week from 9:00am to 2:00pm with changeover to occur at Town G McDonalds.

    iii.In the gazetted school holidays in 2021 and onwards;

    1.For only half of the April and September gazetted school holiday periods being the first half in odd numbered years and the second half in even numbered years.

    2.For all of the June/July gazetted school holiday periods.

    3.For weeks 3, 4 and 6 of the December/January gazetted school holiday periods each year.

    6)For the purpose of school holiday time the following shall apply:

    a)The first day of the school holiday period commence at 3:00pm on the last day of the gazetted school term.

    b)The last day of the school holiday period is the Sunday immediately before the first gazetted day of the school term.

    c)Changeover in the middle of school holidays time shall occur on the middle Saturday of the school holiday period.

    d)Any provision for time in these orders that is inconsistent with school holiday time shall be suspended during gazetted school holiday periods.

    7)Unless provided otherwise in these orders;

    a)The mother shall collect the child from the father at Town G McDonalds at the commencement of time; and 

    b)The father shall collect the child from the mother or her nominee a City C McDonalds at the conclusion of time. 

  2. At the close of evidence the orders sought by the mother were that the child live with her and spend supervised time with his father until the age of 18.  The mother also sought an order for sole parental responsibility. 

The Law

  1. As this is a children’s matter Part VII of the Family Law Act 1975 (Cth) (“the Act) provides the statutory framework in which I am to exercise my power when making parenting orders. In making those orders it is the best interests of this child that is my paramount consideration (s.60CA).

  2. Section 60B sets out the objects and principles that inform my decision. In determining what orders are in the best interests of this child I must consider the matters set out in section 60CC.

  3. The father seeks an order for equal shared parental responsibility and the mother seeks an order for sole parental responsibility. Accordingly I must consider section 61DA.

  4. Section 140 of the Evidence Act 1995 (Cth) sets out the standard of proof in relation to civil proceedings such as these. Section 140(2) identifies some of the matters that I should take into account when deciding whether I am satisfied that the standard of proof has been met.

  5. The standard of proof remains the same notwithstanding that there are allegations of a criminal nature.  However the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove.  That is, where serious allegations are raised which if proved would result in a serious consequence, the evidence necessary to prove such allegations would need to be quite probative.[1] 

    [1] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 (16 December 1992); Briginshaw v. Briginshaw[1938] HCA 34; (1938) 60 CLR 336, at p 362; Marsden & Winch (No. 3) [2007] FamCA 1364 (21 November 2007).

  1. Here both parents are asking me to make a finding that the other parent poses an unacceptable risk of harm to the child.  In M v M (1988) CLR 69 the High Court comprised of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ gave a summary of the variety of forms of what constituted an unacceptable risk of harm, at [78] they said:

    “Efforts to define with greater precision the magnitude of the risk which will justify the court in denying apparent access to a child have resulted in a variety of formulations.  The degree of risk has been described as a risk of serious harm ( Av A [1976] VR 298 at 300), an element of risk (in the marriage of M (1987) 11 Fam LR 765 at 770 and 771 respectively), a real possibility of risk ( B v B (acess) [1986] FLC 91-758 at 75, 545), a real risk (Leveque v Leveque (1983) 54 BCLR 164 at 167), and then unacceptable risk (Re G ( aminor) [1987] 1 WER 1461 at 1469).  The imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding.  In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of abuse.” 

  2. The Full Court of the Family Court discussed various authorities in Napier v Hepburn (2006) FLC 93-303 citing in particular (at paragraph 56) N v S (1996) FLC 92-655 where his Honour Justice Fogarty said :

    “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 why 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 the facts of the particular case, and to explain adequately their reasons for findings in this regard.”   

  3. The definition of child abuse is found in section 4(1) of the Act it obviously means an assault including a sexual assault of a child and also relevantly means causing the child to suffer serious psychological harm when that harm is caused by the child being subject to, or exposed to, family violence.

  4. Family violence is defined in s. 4AB of the act. That definition includes as an act of family violence, “preventing the family member from making or keeping connections with his or her family, friends or culture.”[2]  The father alleges that the mother will cause this child serious psychological harm through preventing him from keeping connections with the father and his family. 

    [2] S. 4AB(2)(i)

  5. The father says that there is an unacceptable risk of harm to this child of suffering psychological or emotional abuse as a result of the mothers unwavering belief that the father is a paedophile and that he has and will continue to sexually abuse the child.  His case is that the mother cannot refrain from exposing the child to those views. 

  6. In K & B (1994) FLC 92-478 Justice Kay at p 80,973 said this:

    “Sexual abuse is insidious.  Its effects are far-reaching.  Violence in the home can be equally insidious.  Psychological or emotional abuse can have equally deleterious effects.  Our society accepts a plurality of conduct and plurality of attitude.  It does its best to ensure the existence of certain minimum standards, and consistent with the maintenance of a relationship between parent and child, to ensure that parents do meet those minimum standards.”

  7. I too am of the view that psychological abuse is as damaging to a child as physical abuse.  This is particularly so when the child suffers from a distorted view of one or both of its parents as a result of one or both of its parents not being able to protect the child from his or her own views of the other parent. 

  8. There are a plethora of studies that show that when a child is not supported in having a meaningful relationship with both parents that child has the potential to suffer long term psychological harm. 

Assessment of the Evidence

  1. Both the mother and father were cross-examined.  The father, despite facing the most heinous and repugnant allegations a father could possibly face kept his composure at all times and gave his evidence in an honest and forthright fashion.  The father made concessions where necessary, for example he admitted to his continued viewing of pornography.  The mother suggests that his viewing of pornography poses a risk to the child. 

  2. The mother when cross-examined made inconsistent statements.  She added information that was not previously raised in the affidavit material at various times throughout her evidence.  In her affidavit material she failed to place important and relevant information before the court, for example, the fact that she was present on most of the occasions that the father drove a young student to church. 

  3. The mother would not make obvious concessions.  Her evidence was incongruent at times, for example in relation to the allegation that the father was sexually inappropriate with a schoolgirl despite the fact that the allegation had been fully investigated and no disciplinary action or criminal charges laid the mother will not accept that no inappropriate sexual activity occurred even though her evidence was that she was hoping that there was no inappropriate sexual activity occurring.  Indeed the mother’s evidence was that she believed the Department of Queensland Education finding vindicated her concerns and stated “it came back Word for Word”.  It did not. 

  4. The mother also admitted that she wrote to the father on 21 May 2020 regarding a question concerning scriptural divorce.  She stated the father responded to her on 25 May 2020.  The mother then took his letter to the Queensland Police with a view to having the father charged with a breach of a domestic violence order. 

  5. In assessing both the mother and father in terms of whether they are witnesses of credit I find that the father is a witness of credit but the mother is not. 

Primary Considerations

  1. The mother repeatedly gave evidence that she wanted the child to have a relationship with his father.  However the mother informed Dr B that she saw no benefit in the child having any contact with the father.  Dr B states this in his report: 

    “When I enquired as to what she felt would be the best outcome of the family court process,” I want him to leave us alone because the child does not need him.” “He’s got good male support with my father.”  “He is only doing this because he is the property to the father, he is just an object.”

    “When I enquired if she foresaw any benefit to the child having contact with the father, she replied “no.” 

  2. I was left with a clear view that the mother did not want the child to have a relationship with the father.  The mother is clearly of the view that the father is a paedophile and that he has sexually abused the child and will continue to do so.  The mother clearly believes, despite evidence to the contrary, that the father acted in a sexually inappropriate way with a particular schoolgirl.  The mother stated that despite the findings I make she will not be convinced that the father is not a paedophile. 

  3. The father throughout these proceedings has been seeking an order that he spend time with his son and that otherwise the child live with the mother.  When it became clear to the father that the mother will not facilitate a relationship between he and his son the father changed his position as outlined in Exhibit 5. 

  4. The father has shown patience and composure throughout these proceedings.  There has been at least two occasions where the mother has unilaterally withheld the child.  The father has remained calm and accepted the situation.  At no stage has he spoken poorly of the mother to anyone of importance.  He says that he will promote a meaningful relationship with the mother and I accept his evidence. 

  5. The recommendations of Ms J, the report writer, support a finding that she considers it in the best interests of this child to have a meaningful relationship with both parents.  Dr B was also of the opinion that this child would benefit from a meaningful relationship with both parents. 

  6. I am satisfied that it is in this child’s best interests that he have a meaningful relationship with both of his parents provided there is no harm to him in doing so. 

  7. The mother raises a number of issues in relation to the father and seeks a finding that the father poses an unacceptable risk of harm to this child. 

Inappropriate sexual relationship with school girl/s

  1. The first issue raised is that the father engaged in inappropriate sexual relationships with at least one student possibly more. 

  2. The evidence establishes that at a time that the mother attended a police station in June 2018 to report a rape she declined making a formal complaint after she had been provided information about the process and the statue limitations.  She stated that she was not emotionally or mentally ready to make a rape complaint. 

  3. On that same day however the mother provided the police with a mobile phone and made a broad allegation that the father had been sexually inappropriate with schoolgirls.  The police investigated that complaint and no charges were laid after they reviewed messages and images on the phone.  The police investigation found that the messages between the father and a student, or students, did not appear to be of a sexual nature and generally concerned arrangements for a student to be picked up and taken to church.  

  4. The mother failed to outline in her affidavit material that she was present during most of those occasions where the child was picked up and taken to church because both she and the father were members of the same congregation as the student. 

  5. The images viewed by the police were deemed to be of no concern.  The police referred the matter to the Department of Education for further investigation. 

  6. The Department of Education thereafter conducted an investigation in relation to the text messages and images found on the phone.  The findings of that investigation are contained within Exhibit 8 and ultimately there were no findings of any sexually inappropriate text messaging or sexually inappropriate photographs. 

  7. The investigation found that the father had behaved in a way, whether connected with his profession or otherwise, that does not satisfy the standard of behaviour generally expected of a public servant. (As he failed to obtain the school’s principal permission to text with the child, to drive her to church and to provide during lessons to her.) The father was reprimanded and was asked to undertake a course. 

  8. When it was put to the mother that the investigation proved that there was no sexual content to the relationship between the father and students the mother then gave evidence that the father spoke of one particular student often within the home and talked about her breasts and her body generally.  That evidence was not in the mother’s affidavit nor did the mother tell either the report writer or Dr B of those matters.  The mother did tell the report writer and Dr B that the father’s texting with a particular student became a major issue within their marriage. 

  9. I totally reject the evidence that the mother gave whilst under cross examination in relation to the father describing a particular female student in a sexualised way. 

  10. Having assessed the evidence in relation to this allegation I am not satisfied that the father poses an unacceptable risk to the child. 

Pornography

  1. The mother accuses the father of being addicted to pornography and says that this poses an unacceptable risk to the child. 

  2. The father was cross-examined in relation to his viewing of pornography and he conceded that he still does view pornography from time to time.  He totally rejected the suggestion that he is addicted to pornography. 

  3. His evidence when cross-examined about the type of pornography he views was that it is of females and not of children or teenagers.  I accept his evidence. 

  4. Ms J in her reported paragraph at 59 says: 

    “The accusations of addiction to pornography and of his relationship to school students may give rise to concerns about his lifestyle and how that might impact on parenting.” 

  5. At paragraph 139 Ms J says this: 

    “having said this, Mr Dittmar’s admissions to watching pornography and continuing to do so at the time of assessment, including a time with Mr K reported finding Mr Dittmar at Mr K’s own computer watching pornography on a visit, is concerning as it is well-known that pornography sets an unrealistic example of sexual relationships, can lead to proclivities that are unacceptable to partners, and dissatisfaction in real-life sexual experiences.  Further, Mr Dittmar may like to consider how this habit may or may not promote suitable parenting and teaching X how to be a respectable member of society as he matures”….

  6. When cross-examined by the mother’s counsel in relation to those comments Ms J said this: 

    “so having, generally speaking certainly in this profession, we do not view pornography-even if it is being viewed privately-is really a very moral, good choice.  The impact it can have on a child then is if that is maybe cheapening sex or cheapening women or somehow creating a negative view about sexual experiences on the child, if that happens in that environment then it will impact the way X developed his understanding of respect for women, the sexual activity, for intimate relationships, because pornography creates an unrealistic expectation.  Living in a house where someone else is doing that, if he is not directly exposed to it, the impact really comes down to on how much the father then allows that to flow into parenting attitude, his thoughts about women, how he views his partners, those sorts of things.  And how he, when X is in his care, how he teachers X respect for women and adult sexual contact.” 

  7. There is no evidence before the court that could substantiate a finding that the father has exposed this child to pornography.  Furthermore there is no evidence that could substantiate a finding that the father has a lesser view of women or that he has communicated his views about women to this child.  Indeed the evidence supports a finding that the father is supportive of women generally. 

  8. It may be that the father’s viewing of pornography results in him having an unrealistic expectation with regards to sexual relationships and that he may find his preferences in relation to sex unacceptable to respective partners.  It may be the case that the father experiences dissatisfaction in real-life sexual experiences as a result.  None of those things however pose a risk to this child unless the father is exposing the child to his views and sexual preferences. 

  9. The evidence does not support a finding that the father has or will expose this child to pornography or to inappropriate views about women.  In those circumstances I cannot make a finding that the father poses an unacceptable risk to this child as a result of viewing pornography. 

Sexual abuse of the child

  1. The mother alleges that the father has sexually abused this child.  It is important to note that the child has made no disclosures of a sexual nature to police, his psychologist Ms D, and his doctor.  The only people that have allegedly heard disclosures are the mother and the maternal grandparents. 

  2. The mother took the child to a doctor on 17 December 2019 because the child complained of having a “sore willy”.  The doctor took a swab and it was confirmed that the child had an infection.  At the time the child was taken to the doctor’s office he had not spent time with his father since 5 December 2019. 

  3. The mother was asked in cross-examination whether she wanted the court to rely on that incident as evidence of sexual abuse and she stated she did.  There is no evidence to support a finding that the infection in the child’s penis is evidence of the father sexually abusing the child.  No report was made by the doctor to any relevant authority. The doctor was not called to give evidence. 

  4. The next incident that is alleged to have occurred is in January 2020 when the child has allegedly said to the mother “Mr Dittmar hurt my bum, hit me in the face and hurt my willy”.  The mother says that she was then getting ready to leave and when she was putting the child in the car he said those things again and when asked to point to where he was sore he pointed to his penis.  The child was taken to a doctor and the doctor gave the mother a form to fill out which contained questions to ask the child.  This doctor was not called to give evidence. 

  5. The mother’s affidavit evidence is that she observed Dr M asked the child “how often do you feel sad?” and that she observed the child to reply “when Mr Dittmar hurt my bum and willy.”  The mother under cross-examination however, after it had been pointed out to her that the doctor did not make any referral to the relevant authorities that her affidavit was incorrect and it was in fact her mother who asked those questions and got that reply. 

  6. When Ms J was cross-examined she gave evidence that a child would not make a disclosure that a parent is doing some sort of sexualised activity with them without having watched the sexual activity or have it actually happen to them. 

  7. I asked Ms J a question in the following terms: 

    “Okay and can I just ask a further question on that, “Mr Dittmar hurt my willy and my bum”.  That isn’t the type of sexualised behaviour or sexual act that you were saying previously children don’t make up, hurting your willy and bum could come from all sorts of incidents?” 

    Ms J replied “correct” 

  8. Ms J did indicate that the child may very well be trying to relay an event that has occurred.  There is nothing of a sexual nature in the alleged disclosure and in those circumstances it would be unsafe on the strength of the evidence to either find that the father sexually abused the child or that this comment is sufficient to lead to a finding that the father poses an unacceptable risk to the child. 

  9. The next allegation is that on 13 February 2020 the child had removed his penis from his pants and was playing with his penis.  The mother alleges that she asked the child what he was doing and the child said to her “Mr Dittmar showed me how to do it.” 

  10. The child’s doctor was not called to give evidence.  The mother gave evidence that the police told her something had definitely happened but that the child was too young to be able to give a statement.  No police officer was called to give evidence.  The father was not cross-examined in relation to whether he had shown the child how to play with his penis. 

  11. Once again there is insufficient evidence of a probative nature to satisfy me that the father poses an unacceptable risk of harm as a result of this allegation. 

  12. The next allegation is that when the child was returned to the mother’s care on 26 July he was playing with himself and had his hands down the front of his pants with an erection “most of the time.” 

  13. The mother alleges that on 29 July 2020 she was watching a movie with the child and he had his hands down his pants.  She said she asked him to stop doing that and ask the child “what are you doing”, and the child replied “my willy hurts.  Mr Dittmar hurt my willy in the shower with the soap.”  The child later said in response to a question whether he was being washed too hard “no.  It made me scared and sad.” 

  14. On this occasion the maternal grandfather was present and his evidence is that he asked the child whether it made him “feel nice” and the child answered “feel nice” and that he was in the shower “with Mr Dittmar.”  The maternal grandfather continues in his evidence to say that he then asked the child whether his “willy stood up” and gestured with his finger and the child nodded “yes.”  The Grandfather says that the child finished by saying “ah, ah, ah” and waved his finger and said “no more talking.” 

  1. The mother says that the child calls the father Mr Dittmar.  The father says that the child calls him dad or daddy.  It transpired that a worker at the contact centre goes by the name of L. 

  2. It was explained by Ms J that children of this child’s age, as they begin to identify certain people, may often attribute a name to that person.  She gave the example of children of this child’s age quite often start calling their parents by their parent’s first name because that is what they hear. 

  3. Ms J agreed with me that it may have been the case that this child identified the name L to his father in circumstances where he may have been told we are visiting L today rather than having been told we are visiting daddy today.  In any event the mother wants me to believe that this allegation relates to the father and for the purpose of my judgement I accept that. 

  4. It is important to note that this child has been viewing a DVD produced by the Braveheart’s organisation that relates to protection from sexual abuse.  The grandfather said that the finger waving and the sound “ ah, ah, ah” is what the DVD suggests children do when something goes wrong. 

  5. It is the maternal grandfather’s evidence that prior to the child waving his finger and making that sound he had said to the child “well, it’s not good to put your hands down your pants.”  In my view it follows that the child may have considered that he was doing something wrong and as a result waved his finger and made the sound. 

  6. The father was cross-examined in relation to whether he showered with the child and he stated that he did.  He was asked whether the child ever has an erection in the shower and the father stated he did not and furthermore the father stated that he had not seen the child with an erection whilst caring for him at any time. 

  7. In assessing all of the evidence around this alleged disclosure I am once again not persuaded or satisfied that I should make a finding that the father poses an unacceptable risk to this child.  It was never put to the father that he had hurt the child’s anus or penis. 

  8. There is absolutely no other evidence to support a finding that the father has done anything untoward sexually to this child. 

  9. It is submitted on behalf of the father that it is incongruent for the mother to believe that the child has been sexually assaulted by the father yet agree to an order for unsupervised time and make offers of unsupervised time after the alleged disclosures in December and January had occurred. 

  10. The mother gave evidence that she felt pressured into making those offers by her former solicitor however she made the same offers when she had change solicitors. 

  11. When one considers the totality of the evidence I am concerned that the mother was making any allegation she could in an attempt to ensure that the child had no relationship with his father. 

  12. The mother alleges that father has taught the child to keep secrets.  This comes about as a result of the child allegedly saying “no more talking.”  That is the strength of the evidence.  I will not make a finding that the father is teaching the child to keep secrets nor do I consider the alleged moments when the child says “no more talking” to be sufficient to find that the father is an unacceptable risk to this child. 

Domestic violence

  1. Both parties make allegations that the other perpetrated acts of domestic violence.  The mother’s allegations however include allegations that the father raped her anally.  As I previously outlined the mother did attend a police station and commented about the alleged rape but did not make a formal complaint at that time.  The mother has not made a formal complaint to date. 

  2. The father was cross-examined about the alleged rape and it was put to him that he had raped the mother anally throughout the entire marriage.  The father gave evidence that he and the mother engaged in anal sex on one occasion and that he remembered that occasion because it was something new that they were trying.  He otherwise denied that he had raped the mother on any occasion stating that at all times sex was consensual. 

  3. When it was put to the mother that the father had not raped her she became quite upset and indignant and retorted by saying “how dare you.”  She did not however provide any detail in relation to the allegations of rape. 

  4. The mother’s affidavit evidence is also quite lacking in detail in relation to the father’s alleged rape of her.  At paragraph 19 she says “the father was also sexually abusive which commenced in our first year of marriage, escalating as time went by.  I was completely naïve to what the father was doing and felt I had no-one to turn to, but thought that this was a wife’s role.”  That is the only evidence of sexual abuse. 

  5. In my view it would be totally unsafe to rely upon that evidence in making a finding that the father poses an unacceptable risk to this child. 

Allegations relating to the mother

  1. The mother’s evidence is that the child is very anxious in her care and that the child has become secretive.  She suggests that it is the father that is causing this in the child and that as a result I should protect the child by ordering supervised time between the child and father. 

  2. I cannot reconcile in my mind how the mother can honestly put forward a proposal that this child spend supervised time with his father in circumstances where she firmly believes the father is a paedophile, that he has had sexual relationships with school students, that he has sexually abused this child, he has an addiction to pornography and that he has repeatedly raped her. 

  3. I do not believe the mother wants this child to have any relationship with the father.  I do believe the mother feels pressured into offering some time but that she will continue in the future to withhold the child from time to time due to her unwavering belief that the father poses a risk. 

  4. The evidence clearly establishes that the mother has discussed each and every allegation relating to the father in the presence and hearing of the child (Exhibit 4).  The mother when cross-examined as to whether she has done this admitted that she has but then attempted to minimise the risk to the child by saying that when she discussed the allegations relating to the father and the negative aspects of the father generally she spoke quietly and the child was distracted.  This occurred in the presence of Ms D who the mother says is the child psychologist.  It beggars belief that a qualified psychologist would allow this to occur however it did. 

  5. The mother and maternal grandparents gave evidence that they do not discuss the father in their home.  It is quite clear to me that they do.  The maternal grandmother told Ms J that she was concerned that the father would use this child to groom young girls.  Clearly the maternal grandmother was made aware of the allegations relating to schoolgirls. 

  6. The maternal grandfather gave evidence that the child watches a DVD from Braveheart’s relating to protective behaviours at least every second week.  Furthermore that the DVD had been in the child’s home for close on a year.  That is, this child was exposed to the DVD well before there were any allegations that this child had been sexually abused by the father. 

  7. I am satisfied on the evidence that the maternal family hold the father in a very poor light and that they have discussed his many alleged failings in their home.  The mother lives with her mother and father and the child.  I am satisfied that the mother has exposed this child to the very serious allegations raised about the father and also to the mother’s very poor view of the father. 

  8. The evidence clearly establishes that the mother has an unwavering view that the father is a paedophile.  She said as much in her oral evidence.  Furthermore she admitted that it would not matter what findings I made in relation to whether the father was a paedophile or not it would have no bearing on her belief that he is. 

  9. In my view the evidence supports a finding that the mother has continued to look for evidence to prove that the father is an unacceptable risk to the child or alternatively has attempted to have the father punished criminally with a view to having him imprisoned. 

  10. The mother gave the police a telephone containing images and text messages in the hope that the police would find something that could prove that the father was abusing schoolgirls.  As we know the text messages and images were perfectly innocent. 

  11. Despite an order for equal shared parental responsibility the mother then unilaterally engaged the psychologist Ms D.  The father was not informed about Ms D playing a role in this child’s life until July 2020 and by that time the child had been seen Ms D for a period of approximately seven months. 

  12. No disclosures were ever made to Ms D by the child however the mother continually discussed the allegations relating to the father, her very poor view of the father and the court proceedings in the presence of the child. 

  13. The fact that those discussions may have had an impact on the child was something the mother had not previously considered until it was put to her in cross-examination. 

  14. It is the mother’s evidence that she took the child to Ms D so that the child could be appropriately transitioned into spending time with the father. 

  15. Nothing in the notes would indicate that was what was being undertaken with Ms D and one wonders why if that were the case the mother would raise all of those allegations in front of the child and why the father was not involved in the process. 

  16. In yet another attempt to cast the father in poor light the mother made an allegation that he was an extremely dangerous driver with a propensity for speeding. 

  17. That allegation was put to the father in cross-examination and he gave evidence that he had never been fined for speeding after the child was born and that he believed the last time he was issued a ticket for speeding was in 2015 and prior to that would have been 2012. 

  18. Exhibit 3 is the father’s traffic history and that confirms the father’s last ticket was issued in 2015 and that prior to that he had been issued a ticket in 2010. 

  19. The mother’s view of the father is clear throughout her affidavit in chief.  Her affidavit is full of accusations and it is clear that the mother is attempting to prove that the father is not interested in the child and that he is a danger to the child. 

  20. The evidence of Dr B clearly shows that the mother does not want this child to have a relationship with the father. Dr B was clearly of the view having interviewed the mother that she could see no benefit to the child in having an ongoing relationship with the father. 

  21. When speaking to Ms J the mother said that she was concerned that she had not yet had legal advice as to how to answer the question in relation to what she wanted for this child but she did indicate that she did not want the child to go through “more than what he has already been through.” 

  22. The mother cancelled the child’s time with the father on an allegation that the child had said the father would put “her in a bin.”  She subsequently cancelled changeovers at the supervised contact centre when the father was spending unsupervised time with the child.  The mother again cancelled the child’s time with his father on 11 July 2020. 

  23. It should be noted that the mother had consented to the order that allowed for unsupervised time to commence.  However on 12 July 2020 the mother’s solicitors write to the father’s solicitors informing them that there had been “significant and substantial change in circumstances” and as a result the mother would have to seek a variation to the orders.  The letter goes on to say that “the mothers evidence is that the child has been making disclosures to her about inappropriate conduct that if true, would require that the father only have supervised time with the child.” 

  24. The evidence does not support the allegation that the child was making disclosures about inappropriate conduct.  The allegations about alleged inappropriate conduct have already been set out in my reasons.  It is submitted on behalf of the father that this is an attempt by the mother to garner further evidence and I accept that. 

  25. As a result of the mother cancelling the child’s time with his father in January 2020 the child did not spend time with his father from 22 December 2019 until 6 March 2020.  At every turn the mother has doggedly attempted to interfere with this child’s relationship with his father. 

  26. I am satisfied on the evidence that the mother will not be able to facilitate a meaningful relationship between this child and his father. 

  27. Ms J gave evidence during cross-examination that in considering what is more harmful to a child; removing the child from a primary attachment to his other secure attachment or denying the child the right to have a meaningful relationship with both parents, she was of the view that long-term it was more harmful to not have a productive relationship with both parents because “that is fundamental.” 

  28. It is always difficult to remove a very young child from a primary attachment however when the evidence is so overwhelmingly in favour of a finding that the mother simply cannot and will not facilitate a relationship between this child and his father, something has to be done in order to mitigate against the long-term harm that such behaviour will cause for this child. 

  29. As I said earlier, I am satisfied that the father will facilitate a meaningful relationship between the child and his mother and the orders that I have otherwise made relating to the need for the mother to engage in counselling as recommended by Dr B’s will hopefully mitigate against the short term harm that limited time with this child’s primary attachment will have. 

  30. As can be seen by Exhibit 5, the father was seeking a moratorium of time however I explored that proposition with Ms J and I was satisfied on the evidence that a moratorium would be too harmful for this child.  Ms J indicated that the harm caused to this child could be lessened if the child continued to spend time with his mother in an appropriate setting.  Subsequently in written submissions the father concedes that a moratorium is not in the best interests of this child. 

  31. The mother is clearly anxious and has a very negative view of the father.  The evidence establishes that she has been unable to protect the child from her own vulnerabilities.  The child is displaying anxiety in the mother’s home.  The father gave evidence that the child, although not displaying anxiety in his home is nevertheless having bad dreams from time to time which is consistent with what the mother says. 

  32. There is no formal diagnosis of anxiety in the child before the court however the description of the child’s behaviour in the mother’s home would certainly support a finding in my view that the child is at times anxious and unsettled in the mother’s home. 

  33. Ms J gave oral evidence that children who are exposed to anxiety can often mimic that behaviour in themselves.  I am of the view that this child is displaying anxiousness in the mother’s home as it is something that is occurring within the home whilst living with the mother. 

  34. As I previously outlined the mother is of the firm belief in my view that she can see no real benefit in the child having a relationship with his father and that will impact upon this child in a most disadvantageous way and can cause him long-term harm. That is unacceptable in my view and accordingly I find that the child is at an unacceptable risk of harm in the mother’s care. Furthermore if the child is prevented from having a relationship with his father this amounts to abuse under the definition found in the Act.

  35. Dr B in his report opines: 

    “If the court were to find that the mother had deliberately concocted false allegations against the father, with the aim of depriving the child of a meaningful relationship with the father, it is difficult to foresee any treatment that would be successful, unless such difficulties were able to be acknowledged by the mother.  However, distinct from this issue, I would nevertheless suggest the mother would benefit from engagement with a suitably qualified mental health practitioner, to assist her in managing the complexities of the need for an ongoing co-parenting relationship with the father, especially given the high degree of emotional balance that appears to have transpired, as well as assisting the mother in managing her own anxieties and emotions, and protecting the child from the same, particularly of the court to find it was in the child’s best interests to have an ongoing meaningful relationship with the father.”

  36. In my view the mother became highly suspicious of the father’s relationship with a school student.  In circumstances where there was a good deal of difficulty in the parents relationship as a result of the father’s involvement with a student. This has impacted the mother significantly.  Despite findings to the contrary the mother cannot accept that the relationship was innocent. 

  37. This situation has impacted upon the mother’s ability to rationally consider information relating to the child as is evidenced by the fact that she believes the infection in the child’s penis is proof that the father has sexually abused the child.  With her heightened anxiety and suspicion the mother attaches great fear to words and actions that are otherwise innocent. 

  38. I am not persuaded that the mother has deliberately concocted false allegations against the father.  I am persuaded that the mother has had a shift in reasoning as a result of the failure of her marriage. 

  39. In those circumstances I am satisfied that the risk that the mother poses to this child as a result of that shift in reasoning can be mitigated against if the mother engages with a suitably qualified mental health practitioner to assist her in managing the complexities of the need for an ongoing co-parenting relationship and in managing her own anxieties and emotions in order to protect the child from same. 

  40. Once the mother has successfully completed therapeutic intervention in this regard then the child’s time with the mother will no longer be supervised as the risk to the child would no longer be there. 

  41. It is hoped that the mother fully engages with an appropriately qualified mental health practitioner and acknowledges that this is necessary in order to protect this child from the long-term unacceptable risk of harm that he not have a meaningful relationship with both of his parents. 

  42. In the event the mother does not engage with an appropriately qualified mental health practitioner, I am satisfied that the harm occasioned to this child will be lessened by living with his father because he will not be exposed to heinous allegations and an entirely negative view with regards to the mother in the father’s home. 

  43. The same could not be said if the child remains living with the mother.  That is, not only will the child suffer the long-term harm of not having a meaningful relationship with both his parents, the child would be further harmed by being exposed to heinous allegations relating to his father and an entirely negative view held by all those that he lives with about the father in my view, the child would as a result gain a distorted view of the father. 

Other Considerations

  1. The child was too young to express any view that I could give any weight to. 

  2. It is clear that the child has a primary attachment to his mother.  It is also clear from the evidence that the child has a secure and loving attachment with his father.  The notes from the supervised contact centre show that the father is responsive to the child’s needs and that the child seeks him out. 

  3. Both parents have attempted to be fully involved in this child’s life.  For the reasons previously outlined the father’s involvement in the child’s life has been impacted upon by the mother’s actions from time to time. 

  1. There is no evidence to suggest that either parent has failed to fulfil their obligation to maintain the child. 

  2. There is no doubt that the orders I have made will have an impact on this child.  The child will be removed from his primary carer and this will cause him harm.  That harm can be lessened according to Ms J if the child continues to spend time with the mother.  Initially that time can only occur under supervision for the reasons previously outlined. 

  3. Whilst the loss of that primary attachment will be very significant for the child the significance of the harm that flows from it can be lessened if there is, as Ms J said in oral evidence “very nourishing and significant quality time with the mother.”  That can only occur if the mother undertakes the therapeutic intervention that I have ordered. 

  4. As I previously outlined these are difficult matters and I have balanced the competing risk of harm to this child as best I can and I am satisfied that the evidence supports a change in residence for this child. 

  5. The father lives in Town G and the mother lives in City C and accordingly there is distance between the parents.  The mother was asked whether she could travel to City F to spend supervised time with the child and she stated that she could and that she would do everything possible to ensure she spends that time. 

  6. I am satisfied that although there is some expense and distance this child will not be deprived from the opportunity of spending time with his mother at a contact centre due to those matters. 

  7. I am satisfied that the father has the capacity to meet the needs of this child including his emotional and intellectual needs.  Due to the mother’s inability to understand the impact she has had on the child there is a question about her capacity to adequately provide for the emotional needs of this child. 

  8. She simply did not see that discussing these very adult topics and these proceedings in the presence of the child was potentially harmful for him.  Hopefully through therapeutic engagement the mother will come to realise that the child needs to be protected for his emotional well-being from those matters. 

  9. I am satisfied the father has demonstrated a very positive attitude to both this child and to his responsibilities as a parent.  The mother would have me believe that the father has proceeded with his application to either hurt her or because he considers his child property.  I am not persuaded that is the case. 

  10. The mother’s behaviour at times has clearly identified a lack of child focus.  I have no doubt that she loves this child very much and that she takes her responsibilities as a parent very seriously however for the reasons previously set out she has lost child focus. 

  11. There is a family violence order in place and the order named the child as a protected person.  That order was made by consent without admission.  The evidence does not establish that this child has been exposed to family violence.  Furthermore there is no evidence to support a finding that this child will be exposed to family violence in the home of the father.  The parents have been separated since at least January 2018 and but for one incident in June 2018 there have been no further incidents of conflict between the parents in the presence of the child. 

  12. The orders I have made will see that the child lives with the father and that he spends time with the mother initially supervised and provided the mother satisfies the order in relation to therapeutic counselling thereafter substantial time with the mother. 

  13. If I made orders consistent with the mother’s proposal I am satisfied that those orders would most likely lead to further proceedings being commenced as the mother would no doubt, as she has done previously, withhold the child. 

  14. In those circumstances I am satisfied that the order I have made is an order that is least likely to lead to the institution of further proceedings in relation to this child. 

Parental Responsibility

  1. The mother seeks an order for sole parental responsibility.  In circumstances where the child will be living with his father that order is not in the best interests of this child. 

  2. The father seeks an order for equal shared parental responsibility. Section 61DA(1) provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.

  3. The mother admitted to committing acts of family violence on the father.  She says she was frustrated at times and lashed out.  I have made findings that this child has been abused by the mother. In those circumstances there are reasonable grounds to believe that the mother has engaged in family violence and abuse. 

  4. The presumption therefore does not apply however that is not the end to the enquiry.  I must otherwise consider whether it is in the best interests of this child for the parents to have equal shared parental responsibility. 

  5. The father believes that he can co-parent with the mother notwithstanding the heinous accusations that he has had to meet.  That says a great deal about his capacity to facilitate a meaningful relationship with the mother in my view. 

  6. I am satisfied that the father will use his best endeavours to ensure that the mother is fully involved in important decisions in this young child’s life.  As can be seen by the orders the father seeks he is hopeful that the mother will engage in appropriate therapeutic intervention and thereafter this child will spend substantial time with both parents. 

  7. Whilst I accept that communication will be difficult, I am nevertheless persuaded that an order for equal shared parental responsibility is in this child’s best interests and accordingly I have made that order.

  8. As I have made an order for equal shared parental responsibility the provisions of section 65DAA are triggered.  The High Court made it very clear that the pathway in section 65DAA must be followed.[3] 

    [3] MRR & GR [2010] HCA 4.

  9. Historically the family courts have had regard to many factors in determining when an equal shared parenting order was in the best interest of the child.  Those factors include: 

    1)compatible and consistent parenting values and styles; 

    2)positive and non-conflictual relations between the parties; 

    3)commitment to the concept of shared parenting and mutual trust about each other’s parenting abilities; 

    4)ability to communicate about the children; 

    5)acceptance that each parent has something to offer the child; 

    6)a child focused approach and ability to understand the age-specific needs of the child; 

    7)supportive extended families; 

    8)physical proximity. 

  10. It is quite clear from the findings I have made and the uncontested facts relating to this family that none of those factors are present in this family dynamic.  In those circumstances an equal time order would not promote the best interests of this child and such an order is not in the best interests of the child or reasonably practicable.  Accordingly an order for equal time is not made. 

  11. When I turn to consider whether a substantial and significant time order is in this child’s best interests and reasonably practicable, having regard to the findings I have made above and to the fact that I ordered the child should spend supervised time with the mother until she appropriately engages in therapeutic counselling to address the risks to this child, an order for substantial and significant time can only be made provided the mother engages in that therapeutic counselling.  The orders I have made a consistent with those findings. 

  12. For these reasons I am satisfied that the orders I have made are orders that are in the best interests of this child. 

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Associate: 

Date:  31 August 2020


Areas of Law

  • Family Law

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Briginshaw v Briginshaw [1938] HCA 34
Marsden & Winch (No. 3) [2007] FamCA 1364
Brown v The The Queen [2022] NSWCCA 116