Donaghey & Donaghey
[2011] FamCA 13
•19 January 2011
FAMILY COURT OF AUSTRALIA
| DONAGHEY & DONAGHEY | [2011] FamCA 13 |
| FAMILY LAW – CHILDREN – Best interests of the child – Allegations of sexual abuse of child by the father – Allegation of unacceptable risk of sexual abuse – Where allegations arose after son spent limited unsupervised time with his father pursuant to court orders – Where father’s girlfriend attended each visit with the father – Whether there is an unacceptable risk of sexual abuse – Where the son lives with the mother – Where the child has spent little time with his father since the parents separated – Where the father seeks orders that the son live with him and that time between the son and his mother be suspended for a significant period – Where the mother seeks orders that son live with her and have no contact with the father – With whom a child shall live – With whom a child spends time |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Rules 2004 (Cth) |
| B & B [1993] FLC 92-357; (1993) 16 Fam LR 353 B and R and the Separate Representative (1995) FLC 92-636; [1995] 19 Fam LR 594 Devries v Australian National Railways Commission (1993) 177 CLR 472 Donaghey v Donaghey [2009] FMCAfam 1248 Donnell v Dovey (2010) 42 Fam LR 559 Goode v Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 Hardie v Capris [2010] FamCA 1046 In The Marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655 M v M (1988) 166 CLR 69 M & M (Unreported, Family court of Australia, Fogarty, Baker & Butler JJ, Appeal SA44 of 1992, 8 September 1993) Marsden v Winch(N.o 3) [2007] FamCA 1364 McCall v Clark (2009) FLC 93-405 McCoy v Wessex (2007) 38 Fam LR 513 MRR v GR (2010) 240 CLR 461; (2010) 42 Fam LR 531 Mulvany v Lane [2009] FLC 93-404 Napier v Hepburn (2006) 36 Fam LR 395 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Partington v Cade (No 2) (2010) 42 Fam LR 401 Potter v Potter (2007) 37 Fam LR 208 Re Andrew (1996) 20 Fam LR 538 Russel v Close (Unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993) Schorel and Schorel [1990] FLC 90-144 |
B. Mahendra, ‘Psychiatric Risk Assessment in Child and Family Law’ (2008) 38 Family Law 569
Ceci, and Bruck, ‘Suggestibility of the Child Witness: A Historical Review and Synthesis’ (1993) 113 Psychological Bulletin 3
J. Fogarty AM ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249
Wilson J, Atkin Lecture, The Misnomer of Family Law, 2002 cellpadding="0" cellspacing="0">
| RESPONDENT: | Ms Donaghey |
| INDEPENDENT CHILDREN'S LAWYER: | Julie Fotheringham |
| FILE NUMBER: | LEC | 85 | of | 2007 |
| DATE DELIVERED: | 19 January 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 13, 14 & 15 December 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Johnston |
| SOLICITOR FOR THE APPLICANT: | Christopher Hughes & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Carew |
| SOLICITOR FOR THE RESPONDENT: | Parker Kissane & Gibson |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Selfridge |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The following parenting orders are made in respect of the child the subject of these proceedings, J born … August 2004 (“the child”).
Parental Responsibility
That the father shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) (“the Act”)) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:
a.Advise the mother in writing of the decision intended to be made;
b.Seek the mother’s written response in relation thereto;
c.Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d.Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
Live With
The child shall live with his father.
So as to give effect to paragraph 2 of these Orders, the mother shall present the child to the Manager, Child Dispute Services, or such Family Consultant as he might nominate, at the Child Dispute Services, 3rd floor, Brisbane Registry, Family Court of Australia at 10.00am on Friday 21st January 2011, at which time and place changeover into his father’s care shall take place.
Time with the Mother
The mother shall spend no time, nor communicate, with the child before 4.00pm on Friday 11th February, 2011.
As and from Saturday 12th February 2011 until Saturday 3rd December 2011, time between the child and his mother shall be supervised by a person agreed upon in writing by the father, mother and Independent Children’s Lawyer and, failing such agreement, at a contact centre and shall occur as follows:
a.From Saturday 12th February 2011 until and including Saturday 23rd April 2011, between 9.00am and 11.00am each alternate Saturday;
b.From Saturday 7th May 2011 until and including Saturday 3rd December 2011 between 9.00am and 5.00pm, or such lesser period of time between those hours as can be accommodated by the agreed supervisor or contact centre as the case may be, on the first, second and fourth Saturday each calendar month;
As and from Saturday 10th December 2011, time between the child and his mother may be unsupervised and shall occur at all such times as the mother and father may agree in writing and failing any such agreement:
a.From 9.00am on Saturday 10th December 2011 until 5.00pm on Saturday 17th December 2011;
b.From 5.00pm on Saturday 24 December 2011 until 12 noon on Sunday 25th December 2011;
c.From 9.00am on Saturday 14th January 2012 until Saturday 21st January 2012;
d.Thereafter:
i.From after school on the first Friday of the school term until before school the following Monday and between those times on those days on the first, second and fourth weekend of each calendar month thereafter with such time extending to before school Tuesday in the event that any such period of time coincides with a Monday public holiday;
ii.For the first half of each period of school holidays in 2012 and each alternate year thereafter and for the second half of each period of school holidays in 2013 and each alternate year thereafter;
iii.On the child’s birthday for a period of four hours after school if on a school day and such that each of his parents spend one half of the period between 9.00am and 5.00pm if on a weekend;
iv.From 12 noon Christmas Day until 12 noon Boxing Day in 2012 and between those hours on those days each alternate year thereafter and between 12 noon Christmas Eve and 12 noon Christmas Day in 2013 and each alternate year thereafter.
Section 65L Supervision
Pursuant to Section 65L of the Family Law Act 1975:
a. Compliance by the parties with changeover arrangements ordered pursuant to paragraph 3 of these orders shall be supervised and facilitated by a Family Consultant nominated by the Manager of Child Dispute Services;
b. Compliance with these parenting orders is to otherwise be supervised by such Family Consultant of the Family Court of Australia Brisbane Registry as might be nominated by the Manager of same;
c. The said Family Consultant shall give any party to these parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;
d. The parties shall do all such things, sign all such documents, attend all such appointments, and ensure the child attend all such appointments, as are reasonably necessary for the purposes of same.
Communication
As and from Saturday 10th February 2011 the mother may communicate with the child at such times and via such means as the parties may in writing agree and failing agreement, the mother may communicate with the child only by sending to him such cards and/or letters and/or photos as she may choose, but only via Australia Post sent to the residential address of the father and child.
As and from Saturday 10 December 2011, the mother may communicate with the child at such times and via such means as the parties may in writing agree and failing agreement:
a.By e-mail, but not earlier on any occasion than 8.00am and not later on any occasion than 8.00pm and not more than two per day;
b.By Skype, or other similar computer communication, or by telephone twice in any week in which she does not spend time with the child and once in any week in which she spends time with him, but not earlier on any occasion than 8.00am and not later on any occasion than 8.00pm.
So as to give effect to paragraph 9 of these Orders, the father shall, by not later than 4.00pm on 27 November 2011:
a. Provide to the mother an e-mail address for the child;
b.Purchase and install such equipment and/or logistics as might be necessary so as to permit communication by email, Skype or similar computer communication system.
Specific Issues
The father shall:
a.Advise the mother and keep her advised of the child’s residential address, school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom he attends;
b.Do all such things and sign all such documents as might be required so as to authorise any and all of the persons or school referred to in paragraph 11a above, of these orders so as to facilitate the mother receiving any and all such information (including written reports provided in the usual course by any such person) relating to the child’s progress, health, treatment or course of counselling or therapy as the case may be SAVE THAT nothing in this order shall be construed so as to require the father to authorise the provision of any information which, in the written professional opinion of any doctor, counsellor or therapist is contrary to the child’s best interests;
c.Notify the mother as soon as reasonably practicable of any significant injury or serious illness suffered by the child and, in any event, any injury or illness which requires specialist medical treatment or admission to hospital.
Publication
Pursuant to s 121(9)(g) of the Act, the father or the Independent Children’s Lawyer is authorised to publish an account of these proceedings, namely these Orders and the Reasons for Judgment delivered herewith, to:
a.Professor Q;
b.Mr A;
c.The father’s former wife E Donaghey and adult daughter L Donaghey;
d.The mother’s sisters and brother;
e.The Manager, Child Dispute Services, of the Brisbane Registry of this Court or any family consultant nominated by him;
f.Any of the persons or school referred to in paragraph 11a of these Orders;
g.The Department of Communities (Child Safety), the police or any person or organisation of a similar type charged with responsibility for the investigation of complaints of child abuse;
h.Any supervisor or contact centre charged with the responsibility of supervising time pursuant to these Orders.
AND IT IS FURTHER ORDERED THAT
The Independent Children’s Lawyer is discharged on a date three months from the date of these orders.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration 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.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Donaghey & Donaghey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC85 of 2007
| MR DONAGHEY |
Applicant
And
| MS DONAGHEY |
Respondent
REASONS FOR JUDGMENT
When the parents of J, born in August 2004, separated on 29 September 2005, J was about 16 months old. The time spent between the child and his father subsequent to that separation was, until 13 February 2010, supervised by the mother at her insistence. Those short supervised periods were the only time the child spent with his father during that period of more than four years.
At a parenting trial which took place over two days before Slack FM just over 12 months ago in November 2009, the mother sought orders that, in effect, would have had this arrangement continue. The father sought orders that the child live with his mother and have increasing amounts of time with him, resulting ultimately in him spending the whole of each alternate weekend and half school holidays with his father.
Orders broadly in accordance with the father’s proposal were made by Slack FM on 28 January 2010 and Reasons delivered.
On 13 February 2010, the father exercised time with the child pursuant to those orders for the first time. Alleged events on that day (and subsequently) are the catalyst for these proceedings in which the mother seeks an order that there be no time between the child and his father. The father seeks an order that the child live with him and that time between the child and his mother be suspended for a significant period.
During the trial before Slack FM, the mother asserted that the father presented an unacceptable risk of sexual harm to the child. The essence of that assertion came from observations made by the mother of the father with the child when the child was a baby. Those allegations, and his Honour’s findings in respect of them, need to be referred to in some detail below.
The same type of allegations are at the centre of the current proceedings, emanating from what is asserted in respect of events said to have occurred during one or more of the four (and only) occasions upon which the father has spent time with the child pursuant to Slack FM’s orders.
The mother’s asserted fears for her son’s safety if exposed to his father have, it seems plain, increased significantly in their severity and intensity since the earlier proceedings. They are based, she says, on the child’s reports of words and behaviour by his father during those four visits.
The mother contends in these proceedings that, on the very first occasion when the father exercised time with the child pursuant to Slack FM’s orders, the father perpetrated acts of sexual impropriety upon him. The incidents on that and/or subsequent visits are, as the mother says the child reported them, very serious; they involve, for example, penetration of the child’s anus with the father’s penis, a pointed stick and a hand or fist.
Since the earlier trial, the mother asserts that the child has reported that his father has threatened to kill him. When in the witness box in these proceedings, the mother asserted that she believes the father made the threat as she says the child reports and, much more significantly, she believes that the father would in fact murder his own six year old child.
Apart from the current allegations of sexual impropriety to the child, she makes no allegation of family violence by the father – either to her or the child – during cohabitation or since. (One incident of alleged verbal abuse is now made in respect of the pre-separation period and will be referred to below).
The mother also contended at the initial trial (and contends again now) that the child has been psychologically and emotionally abused by his father and is at risk of same in the future.
The initial allegations of same are said to arise from events during the time that she was supervising that time (and despite that supervision). (Hence, she says, she cannot now contemplate supervised time, even if she was to be the supervisor). Again, the details of those assertions and the findings made by Slack FM in relation to them will be referred to later in these reasons. An example manifested in these proceedings is the mother’s assertion that the child has reported to her statements by the father to the effect that he (the child) should ‘hate himself’.
The mother reports the child as being extremely frightened of his father; he has, she says, been experiencing nightmares, has wet and soiled himself and, the mother says, consistently tells her of his fears and that he wishes to spend no time with his father.
As will later be referred to, these proceedings have, as a matter of principle, at their centre, a determination of J’s best interests, as distinct from, for example, a determination of whether any, or all, of the alleged conduct occurred. Clearly, though, where allegations are made of a threat to murder a child, or anal rape of a child, the determination of the central issue of best interests must involve the examination of forensic issues central to those very serious allegations.
That is rendered all the more so because of a number of matters central to the father’s case. First, he denies any sexual impropriety of any type at any time. Secondly, he denies saying the things which the mother alleges the child has reported. Third, he asserts (as he did before Slack FM) that the mother has fabricated the statements she attributes to the child. Fourthly, he says that the statements emanating from the mother allegedly initiated by the child are indicative (implicitly whether fabricated or not) of significant emotional abuse of the child at his mother’s hands. The father says in the latter respect that the picture of the child painted by the mother of a highly anxious, troubled and fearful child, is completely at odds with the manner in which the child presents when with him. That, too, has resonance in evidence before Slack FM.
The polar opposite positions of the parties just outlined occur within a context bounded by the initial proceedings, the factors earlier referred to, and a number of other factors applicable to the four occasions upon which the father spent time with the child from 13 February 2010.
Although Slack FM’s orders contained no requirement for supervision, the nature of the allegations made in the proceedings before his Honour, and the mother’s asserted belief system referred to in those proceedings, saw the father ensuring that the time with the child was supervised by his current girlfriend, Ms W. Each of the father and Ms W depose that, not only did nothing whatsoever occur that was, or might be construed as, sexually improper behaviour, but, further, during the whole of the time that the child spent with his father (and Ms W) he was happy, buoyant, related warmly and appropriately with his father, and showed no signs of distress whatsoever (apart from one incident where he fell over while playing).
The father further contends that the mother’s attitudes, or her asserted belief system/s, will not change. Of this, there is no doubt ‑ in so far, at least, as the mother’s statements to that effect are accepted at face value. The mother stridently said in the witness box that her asserted beliefs (and attitude to the father) will never change. So much is this so, she says, that she will not even countenance counselling or psychotherapy if the purpose, or one of the purposes, of that psychotherapy or counselling is to have her alter her beliefs that the child has been abused and that the father is capable of the sexual and homicidal actions she attributes to him.
Principles In Parenting Proceedings Involving Allegations of Abuse
Part VII of the Family Law Act 1975 (Cth) (‘the Act’) mandates the framework within which parenting orders must be decided, including specifying matters that must mandatorily be taken into account by the Court.
That framework has now been discussed in numerous decisions of the Full Court. Examples include: Goode v Goode (2006) FLC 93-286; (2006) 36 Fam LR 422; Donnell v Dovey (2010) 42 Fam LR 559; Marsden v Winch (No 3) [2007] FamCA 1364; Mulvany v Lane [2009] FLC 93-404 and, recently, the High Court in MRR v GR (2010) 240 CLR 461; (2010) 42 Fam LR 531. Other decisions have considered aspects of those requirements including, for example, the expression “meaningful relationship”.
Recently, I attempted to collate the principles flowing from the authorities, as I understand them, in Hardie v Capris [2010] FamCA 1046. I do not propose to repeat those passages here, but I make it clear that I am here applying those principles, as understood by me, as set out in that decision (at [44] to [86]).
The court’s central task - the determination of orders that best meet the best interests of the particular child or children in his, her or their particular circumstances – and the mandatory process which governs that task – do not change because allegations of abuse are made.
In that respect, it is important to reiterate part of what the High Court said in M v M (1988) 166 CLR 69 (at 76) which, in my respectful view, is no less true consequent upon the passing of the Reform Act which introduced significant changes to Part VII of the Act:
Viewed in this setting, the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…
Further, the High Court pointed out that:
In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.
Now, just as when M v M was decided, the resolution of an allegation of the potential risk of harm ought not replace or divert attention from the central task of assessing the child’s best interests. The identification of the need to protect children from specified harm as a Primary Consideration does not, in my view, alter that position; that Primary Consideration occurs in the context of a broad assessment with an ultimate focus on best interests. So much, in my view, is clear from a number of sections within Part VII, for example, s 65CA and s 60CC(3)(m).
Unacceptable Risk
In McCoy v Wessex (2007) 38 Fam LR 513, Brown J refers to a number of decisions where the place of “unacceptable risk” is considered. In particular, her Honour refers to the decision of the Full Court in In The Marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655. There, Fogarty J said (at 82,713-4):
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 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 where the facts of a particular case fall, and to explain adequately their findings in this regard.
In her Honour’s reasons in McCoy, Brown J also refers to the judgment of Warnick J in Napier v Hepburn (2006) 36 Fam LR 395, (subsequently cited with approval by the Full Court in Potter v Potter (2007) 37 Fam LR 208 and Partington v Cade (No 2) (2010) 42 Fam LR 401). Warnick J says:
[114] I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial Judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can eliminate paths by which a family (or court making decisions for a family) might subsequently explore options for change.
The reference by Warnick J to the process leading to the result is, in my respectful view, extremely important. Frequently, (I would respectfully venture, too frequently) “risk” is referred to as an all-embracing term, a “general” finding of which can (purportedly) be seen to have some form of “ipso facto consequences” for the orders made. Yet, “risk” is, without more, but a convenient description; orders must, surely, address its constituent components, which must, axiomatically, vary according to the circumstances of each case. It is interesting, and in my respectful view instructive, to refer to what has been said about this issue first by the Honourable John Fogarty AM, and, secondly, by Mahendra, an English author qualified as both a psychiatrist and a barrister.
The latter said:
Risk assessment in any situation involves, in essence, the asking of the following questions:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra, ‘Psychiatric Risk Assessment in Child and Family Law’ (2008) 38 Family Law 569).
The multiple emphasis on “probability” is in my view important for the very reasons identified by the Honourable John Fogarty AM writing in the Australian Journal of Family Law (‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249). He said this (at 254-5):
…the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.
Risk is difficult to define in a way which is not ultimately circular. But it is an inevitable part of life at all its levels. It is inherently risky to breathe, eat, drink, walk, drive, work, invest and play. The world is full of different risks and consequences and everyone is prone to dangers. We confront varying levels of risk everyday. People frequently face potentially dangerous situations; not many live at home in complete isolation to avoid getting in harms way. Most people try to avoid what they perceive to be risk; some willingly take on high risk activities.
Risk involves two components; the degree of “likelihood” of the happening of an event, and the possible consequences (good or bad) if it does [cases and citations omitted]. Individuals in their assessment of some risks may focus more on one than the other of these components.
But at some point it usually becomes necessary for that person to make a judgment of the risk and whether it can/should be taken. Where the risk relates to a third person to whom one owes a responsibility, it is likely in the nature of things that the estimate will be conservative.
Risks are relative and usually involve trade-offs. Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane. Very much a balancing exercise of facts, experience and intuition, but essentially which risk carries the greater detriment (usually the car).
Then there is the common experience of a mother watching her child cross a road to go to school. The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult….
At times the courts and the legislature have attempted to give an indication of the content or quality of the risk – otherwise “risk” may mean any risk, however small or unlikely. Hence the use of adjectives such as “serious”, “grave”, “real”, “appreciable” and “unacceptable”. [paragraphing added to the original for ease of reference]
I respectfully agree, as I also do with this statement by Mr Fogarty (which also has echoes in Mahendra’s statement earlier quoted):
… unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk”. (at 261)
Subject to a consideration of the presumption of equal shared parental responsibility and, consequently, s 65DAA (reference to each of which will be made in a moment), the weighing of relevant Primary and Additional Considerations in the context of the Act’s Objects and Principles, seems to me to require, in cases of this type, a careful balancing exercise similar to that referred to by the Full Court, prior to the 2006 amendments to the Act, in B & B [1993] FLC 92-357; (1993) 16 Fam LR 353. There, the Full Court said (@ 365-366):
The High Court in M v M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The court held that the various tests expressed endeavours by the Family Court “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”.
The test propounded by the High Court in M v M and which is authoritative in this jurisdiction, is: “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 sexual abuse (at Fam LR 611; FLC 77,081)”.
The “unacceptable risk” test is therefore the standard used by the Family Court 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”. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M v M that: “In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access”.
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the court stated: “Even in such a case, however, there may be a risk of disturbance to a child who is brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. (emphasis added)”.
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M v M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s 64(1)(a) of the Family Law Act and Brown v Pederson (1992) 15 FamLR 173; [1992] FLC 92-271.
Parental Responsibility
I also attempted to distil the principles emerging from earlier authorities in respect of this issue in Hardie & Capris, above, specifically at [59] to [64]. Again, I do not propose to repeat them here but, again, I make it clear that, in this judgment, I rely upon those principles as there discussed.
Here, the two parents cannot conceive of the other as anything other than a malevolent influence upon the child. Each sees the other as an abuser of the child. There is no likely prospect of change in either parent. I cannot see that there is even a remote possibility of the parents co-operating in the future about anything, let alone in the manner contemplated by s 65DAC.
Further, even if attempts were made by one parent to communicate with the other about major long term issues (the likelihood of occurrence of which I think is, in any event, nil) I consider that it would be attended by conflict and, likely, barely concealed contempt. It need hardly be said that such a situation is wholly contrary to what might be in J’s best interests.
As will be clear from the outline earlier given, a finding of “abuse of the child” (s 61DA(2)) is (on the contentions of either party) a distinct possibility. However, even in the absence of any such finding/s, it seems to me plain that the presumption of equal shared parental responsibility (and all it must entail for parents – see s 65DAC) is, in the circumstances of this case, rebutted in J’s best interests.
It does not follow, however, that the exclusion from decision making (which might be thought implicit as a result) is, or should be, complete. First, if the presumption is rebutted then, absent a relevant parenting order, each of the parents has parental responsibility for J (s 61C). Thus, each of the parents has the duties, responsibilities and authority which that implies (s 60B). By reason of the matters just discussed and the matters to be referred to below, the potential for very significant conflict to J’s detriment, continues to exist if that was to remain the position. J’s best interests require parental responsibility to vest in one of his parents.
Yet, even in that situation, it is not necessary that the other party is completely excluded and doing so is in my view an unwarranted interference with the other parent’s rights. That can, in my view, be a relevant factor (s 60CC(3)(m)) and is in this case. But, orders can be shaped so as to meet concerns arising from the likelihood of parents not co-operating or competing assertions creating conflict likely to embroil the child, while at the same time paying regard to the rights of the “other” parent which I, at least, regard as fundamental. I propose to make an order of this type in this case and I will discuss same in more detail later in these reasons.
For present purposes, however, the result of the finding is that the statutory presumption is rebutted and, to use the words of the Full Court in Goode, above, “…the question of [J’s] best interests is at large”.
The question “in the nature of a jurisdictional fact” (see MRR v GR above) required to be answered by s 65DAA does not arise; the pre-condition to the operation of that section is not engaged because an order will not provide for equal shared parental responsibility.
Sexual Abuse, Evidence and the Present Case
The notion that children might be used (directly or indirectly) for the sexual gratification of adults is repugnant to any sane person. To the extent that it is possible to identify or quantify degrees of repugnance, it might be argued that particular repugnance attaches to a parent of a child using or exposing their own child in that manner. Expressed in terms familiar to the Act, the conduct is as complete and repugnant an abdication of parental responsibility as can be imagined. Similar comments apply, of course, to other forms of child abuse. So, too, genuine repugnance attaches – and plainly should attach – to all forms of family violence; it, too, has potentially profound ramifications for children and the potential to harm them on many levels.
As has frequently been commented upon, the number of cases in this court involving allegations of child sexual abuse has, in recent years, increased exponentially. Opinions can be ventured as to why this is so. Included among them is the suggestion that what was once “a taboo subject”, little appreciated or understood ‑ and very rarely talked about ‑ is now significantly less so. Other explanations also exist. Be that as it may, the proliferation of this type of parenting case (and, indeed, all parenting cases where allegations of any abuse or family violence are a central issue) presents significant challenges for this court. Not the least of those challenges – and one evident in this case – is the nature, extent and quality of the evidence from which the court is asked to make findings relevant to those central difficult issues.
In that respect, it is not to the point that the decision is not, at heart, about whether abuse has occurred or not; the degree of probability that abuse has occurred, and/or might occur in the future is, it seems to me, directly relevant to each of the two matters which the High Court says must be addressed: (1) whether there is a risk of abuse occurring, and (2) assessing the magnitude of the risk.
This case possesses characteristics that are remarkably common in so many cases of this type that come before this court. An outline of those characteristics and their applicability here, provide, in any event, a useful background to this particular case:
·The allegations are in respect of a very young child. (In this case, allegations of improper conduct extend back to a time when the child was a baby aged about 15 months (and, perhaps, before – the timeframe for the “bouncing on the stomach” incident is unclear). More recently, the alleged behaviour was perpetrated when he was about 5½ years of age);
·There is no physical evidence in support of the allegations. (Here, despite medical investigation, there is no evidence to support alleged statements by the child that he has been anally penetrated by an adult penis, a stick and an adult hand and/or fist. Further, a police investigation, during which the child was interviewed, resulted in no action being taken);
·The allegations rest, primarily, upon statements made by a child. (Such is the case here.);
·The primary source for reports of what a young child is alleged to have said is a parent or close relative of the child. (Here, it is the mother.);
·The primary source for reports of what a child has said historically is a person who either then, or since, believes strongly that the child has been abused. (Here, the mother’s belief has already been referred to. It is shared by her sister with whom she and the child live and by other family members, principally the mother and brother.);
·Alleged statements which, on their face, are asserted to be indicative of sexual abuse have increased in their frequency and intensity and refer to behaviour of increasing severity and seriousness. (Reference has already been made to the seriousness of the behaviour alleged and to the fact that there are said to be statements by the child reporting his father’s threat to kill him);
·Several behavioural indicia are said to accompany or surround the alleged statements. (In this case, the child is said to be experiencing nightmares and wetting and soiling, associated, it is asserted, with thoughts of his father and, in particular, the idea of the child having to see his father);
·The child is said to be frightened of the alleged perpetrator parent (the child is said to be in real fear of his father);
·There is a stark contrast between the accounts of behavioural characteristics observed by the alleged perpetrator parent and those observed by the other parent. (In this case, the accounts of the child’s reports to the mother of his reactions to the father and accounts of the father and Ms W of those reactions could not be more different);
·The alleged perpetrator parent asserts that the child exhibits no fear with him or her and, indeed, asserts a warm and loving relationship. (Here, the father makes this assertion. The mother asserts that J, aged not yet 6 at the time, “puts on an act” out of fear of his father. In short, she asserts that the child, out of fear of being harmed if his “true feelings” are revealed, is able to fool his father (and Ms W) into believing that he is affectionate and loving toward them);
·The child has seen one or more “therapists” or “counsellors”. (Here the child has seen a psychologist, Mr A, on 22 occasions, recently, weekly);
·Sexual abuse (or, at the least, the possibility of sexual abuse) has been the focus of such counselling or therapy. (Such is the case here);
·The counsellor or therapist conducts the therapy in the belief he or she is dealing with a child who has been sexually abused. (Here, Mr A says he became concerned that the child had been sexually abused during the sessions);
·The consultations have been arranged by a parent who says that they implacably believe that the child (patient) has been sexually abused. (This is the case here – the mother arranged the therapy (on the recommendation of a GP));
·The child has given at least one, and frequently many, accounts said to be indicative of abuse prior to the therapy sessions taking place. (So, too, this is the case here; a complete account of what the evidence reveals the child has said, when, and to whom, will be given later in these reasons);
·Statements by the child to an independent, trained person occur after many statements said to indicate abuse have occurred. (Once again, this is the case here).
It should be emphasised that, while the focus of those factors might be seen to be related to the probability, and degree of probability, of abuse having occurred – matters central, in my view, to assessing risk – it should not be thought that those same matters pertain only to that issue (or, indeed, solely to the Primary Consideration of protection from harm). It will, I think, be plain that those same matters find reflection in both Primary and Additional Considerations.
For example, a child’s fear of a parent is plainly related to the “benefit of a meaningful relationship” and to the “nature of the relationship” between the child and his parents. Similarly, the child’s “views” – at least in the broad sense – can be seen to be relevant. A parent’s asserted belief that abuse has occurred and, reciprocally, a belief by a parent that a co-parent has fabricated an allegation of sexual abuse (and the potential for child homicide) must plainly be relevant to the “ability” and “willingness” of each parent to encourage and foster a relationship between the child and the other parent.
No less important, each of the party’s proposals provide, in their different ways, for a significant change in the child’s life. If the father’s proposal is accepted, he will move from the care of someone to whom he is, without doubt, strongly attached and who has, undoubtedly, been his primary nurturer throughout his life. He will also be removed from daily contact with his aunt to whom, it would appear, he is also attached. The child will, on the father’s proposals, not see his primary nurturer for some time. If the mother’s proposals are accepted, the child will have no relationship with his father.
While many findings central to the Primary and Additional Considerations can be made (and will be addressed in more detail below), difficulties nevertheless remain in cases of this type. First, and this case is a stark illustration, is a dilemma central to parenting cases in family law not found in other areas of the law. Findings about central factual issues do not necessarily dictate the result; proof of the elements of a “cause of action” do not necessarily lead directly to a “remedy”. For example, it is entirely possible here for a finding to be made that the child is not at risk of sexual (or other) harm from the father. That central finding might be thought to dictate orders productive of (at the least) the child enjoying a fulsome, regular (indeed, “meaningful”) relationship with his father of a type which the Act envisages. But, that result does not necessarily follow; the proceedings are not about what is “fair” to the father, or what is “morally right or wrong” about each parent’s respective behaviour, but about what result is ultimately best for J (given that the circumstances in which he finds himself dictate that any result is likely to be a long way short of what is truly in a child’s best interests). Other factors (Considerations) that have J as their central focus are also directly relevant in determining that central issue.
While, as referred to above, this case can be seen to have characteristics shared by so many cases of this type, it also has features by which it differs. Frequently, in cases of this type, statements made by children said to be indicative of abuse (or the risk of abuse) are not capable of being related to specific occasions or timeframes or, indeed, to any other evidence separate from the statements of the child, often reported predominantly by a person or persons who believe abuse has occurred, together with the observations (alleged to be sinister) of those same people.
While those features are present here, by way of contrast with that situation, here, if the child is, in his various statements, describing acts of sexual abuse (and other abuse including emotional abuse), then, as the mother herself accepted in the witness box, and as her counsel conceded in submissions, it can only be abuse which has occurred on the four occasions between 13 February 2010 and 3 July 2010 when the child saw his father pursuant to orders made by Slack FM. Here then:
·The alleged incidents have a time frame;
·The alleged incidents are confined to four identifiable occasions;
·Each of those four occasions is of short duration (four hours);
·Each of those four occasions occur during daylight hours;
·Each of those four occasions saw time take place in public places;
·On each of those four occasions, a person other than the father (Ms W) was present for the whole of the time (subject to interludes of, about ten minutes and 20 minutes, of which more will be said below).
In addition, the four occasions which mark the only possibilities of abuse occurring, took place after a process of litigation and a trial as a result of which the father says, and I accept, he was under no doubts that his every word and action would be scrutinised by the mother. He says, and I accept, that it was specifically for that reason that he asked Ms W to be present for the whole of each occasion. Those four occasions also occurred after the mother had, in the proceedings before Slack FM, made it abundantly plain that she implacably believed that the father was capable of sexually abusing his son and was likely to do so in the future. Indeed, her whole case before Slack FM was effectively based on that premise.
Some or all of those matters can be seen to be potentially relevant to a finding of whether abuse occurred. But, relevant to the present central issue, they can also be seen to be crucial in arriving at findings about each of the two matters which the High Court says must be addressed in proceedings of this type.
But, even if greater clarity might be brought to allegations, by, for example, findings about opportunity or probability, other issues emerge. For example, if it was found that what the child is reported as saying occurred did not, in fact, occur, or was extremely unlikely to have occurred, what ought be made of the fact (if accepted) that the child has not only said these things but also that they are accompanied by what the mother describes as troubling regressive behaviours. If, for example, it is found that the mother is not fabricating the things that the child has said to her and has accurately described his behaviours when in her presence, what other findings might be made, or should be made, as a result? The answers to those, and other, questions have the potential to say much about the child’s best interests.
That these (and many other similar) questions can arise, illustrates readily enough the earlier expressed concern about the nature, quality and extent of evidence by which findings are to be made. Further, in that respect, if “common knowledge” or “notoriousness” (see s 144 Evidence Act 1995 (Cth)) has significant limitations when, for example, issues of “aboriginality” lie at the heart of a parenting case and appropriate expert evidence is to be preferred (see B and R and the Separate Representative (1995) FLC 92-636; [1995] 19 Fam LR 594 @ 624; Donnell and Dovey (2010) 42 Fam LR 559), then, when the assessment of the risk of serious, reprehensible conduct to a child is the central issue, the need for appropriate evidence, and appropriate expert evidence in particular, is, too, surely to be required.
In McCall v Clark [2009] FLC 93-405, the Full Court said (in a parenting appeal with a context different to the present):
126. There is no suggestion in this case that the Federal Magistrate was referred to any matter which would fall within the purview of s 69ZX(3) to inform himself of matters relevant to establishing a meaningful relationship for a three year old child with a parent, where the child has experienced a significant period of time with little interaction with that parent. Neither party tendered to the Federal Magistrate any of the well-recognized peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material. Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act.
In (at least) cases of this type, “well-recognised peer reviewed research” is, in my respectful view, a concept which should cause significant pause for thought. As but one example of the concerns to which I refer, Ceci and Bruck, presenting the Amicus Brief for the case of State of New Jersey v. Michaels, compiled by the Committee of Concerned Social Scientists (2007), say: “It is important to understand that this is a rapidly expanding area of inquiry. Reviews of the literature that were published only a few years ago, are now out of date”. The concern is exacerbated significantly when regard is had to the (notorious) fact that, since the Full Court in B and R made reference to data “… partly constituted by readily accessible public information of which it would be expected that a trial Judge would inform himself or herself…” the sources and volume of “readily accessible public information” have each increased enormously, indeed exponentially. There is no doubt about the volume and accessibility of information on the Internet; the issue is its reliability or, perhaps more accurately, how to assess its relative reliability when compared to other pieces of information also emanating from the same public resource.
At the very least, as it seems to me, when issues as serious as child abuse arise, the introduction of such research as evidence should come about (as the Full Court effectively suggests in McCall) by the means of an independent expert who possesses requisite training, expertise and experience in dealing forensically with cases in which sexual abuse of young children is alleged, and who, crucially, as part of that expertise, is also familiar with relevant peer-reviewed research. Crucially, that training, expertise and experience should permit them to properly posit particular pieces of research within the scientific mainstream. Caution is needed on the part of the Court when reference is made to a particular study or studies – even by a properly qualified expert. Such a reference can be of little assistance unless it is known where the study, or studies, sit within the accepted body of knowledge. As the Honourable John Fogarty AM said above (@ 272), “You could fill a library with articles on this topic arriving at differing conclusions”.
It is for that reason, together with the very rapid rate of development in that body of knowledge, that greater comfort is given to judges if regard can be had to meta-analyses – that is, the product of a highly-qualified researcher in the relevant area examining the entire respected and recent literature and attempting to synthesise the findings. (See, as an example Ceci and Bruck, ‘Suggestibility of the Child Witness: A Historical Review and Synthesis’ (1993) 113 Psychological Bulletin 3. Note, though, that by reference to Ceci’s comments above, this particular 1993 study is now well out of date).
While noting the provisions of s 144 of the Evidence Act and the provisions of Division 12A of the Act, including s 69ZX(3), the concerns I have in cases of this type extend beyond, I think, those alluded to by the Full Court in McCall. For example, I would, in the absence of direct expert evidence of the type I have just referred to, need to be convinced that a piece of research contained in a document sought to be tendered was either “capable of verifying” “knowledge” within the meaning of s 144 or that the document contained “knowledge” that was “not reasonably open to question”. So, too, in the absence of accompanying expert evidence, the value of “research” sought to be tendered (even if admissible by reference to the provisions of Division 12A) is, in my respectful view, of dubious value to a court.
Of course, in making these comments I am, as I must be (see e.g. s 69ZN(3); (7) and s 69ZX(1); (2)) acutely aware of the demands of proportionality and the need for litigation to be conducted, and be brought to an end, expeditiously in the best interests of children. No less is this so for J who has already had to endure (indirectly) one trial process. I am also acutely aware of the practicalities of organising appropriate evidence and the significant costs involved; each are very important and very real for the parties involved.
Yet, the issues in cases of this type are profound; a wrong decision about risk could result in a parent who has done nothing wrong not seeing their child, or, a wrong decision about risk could place a child at risk of current, and likely future, harm of very significant proportions. It is plainly neither sufficient nor appropriate for a court, charged with the responsibility of doing justice according to law, to avoid the difficult decisions involved, axiomatically fallible though the process obviously is. But, like most difficult tasks, the process should be facilitated by use of the best tools, relevantly, the evidence upon which the decision can be made.
Deep and real questions surround what is, and what is not, genuine expertise in addressing issues surrounding allegations of sexual abuse and, more particularly, the timing of, and processes employed by, persons who assert “expertise”. A crucial problem in that respect is the expression of opinions about the likelihood of past or future abuse by therapists or counsellors who are consulted (even if with the best or “purest” of parental motives) on the basis that overt behaviours of a child said to need treatment are said to be indicative of abuse, or are accompanied by a parental belief that the cause of the behaviours is sexual abuse.
Here, Mr A, as part of his “treatment” or “therapy”, wrapped J up in sticky tape at the child’s request. This will be considered in some detail later in these reasons. In the context of the present discussion, however, it is to be noted that, when I asked Professor Q, a single expert psychiatrist, about this part of the “therapy”, she said, “I think most clinicians would be very careful about how they handled a child, particularly a child who had ideas of having been harmed by adults, you would be very careful about any contact with the child”. I consider that Professor Q was being very careful – or “diplomatic” – in her response. It may not be for me to comment on what may, or may not be, appropriate clinical practice (although I confess to being stunned that such a practice would form part of any “counselling” or “therapy” where there is alive the possibility that a 5 or 6 year child has been sexually abused). But, in a forensic context, those actions highlight starkly the concerns which I have expressed about the nature, type and extent of “expert” evidence in cases of this type.
That is all the more so in this particular case when reference is had to the evidence of Mr A in response to questions by me (in a couple of different contexts) which sought from him the literature to which he had reference in the context of referring (as he did in his oral evidence) to “the general indicia of sexual abuse”. Mr A was unable to refer me to any literature at all but went on to tell me that he had reference to “booklets produced by the sexual assault service”. Mr A suggested that I could find the information myself by going to the Internet and “looking up ‘signs of sexual abuse’”. When I raised my concerns about knowing which material “I would find on the internet [which were] reliable, scientific sources” properly researched and peer reviewed, Mr A responded:
It’s the quick way for me. I’ve read a lot about sexual abuse and the signs of and so if I refresh myself by going to the Internet I can recognise again the same things there. It’s not really rocket science in my mind.
Further concerns raised in the instant case by the matters just discussed, will emerge below. First, though, I turn to a number of central findings adopted from Slack FM’s earlier judgment.
Considerations and Findings
Findings in Earlier Proceedings – the Law
Each of the parties relies upon evidence in the proceedings before Slack FM and upon aspects of his Honour’s Reasons for Judgment.
Slack FM dealt in reasons after a trial with the central issue of whether the father presented an unacceptable risk to the child. Neither party, nor the Independent Children’s Lawyer (ICL), seeks to persuade this court that any estoppel applies in respect of that issue. The concession was, in my view, properly made (See Schorel & Schorel (1990) FLC 90-144 especially @ [29]).
In having recourse to the evidence before Slack FM and to his Honour’s findings, reference needs to be made to s 69ZX(3) of the Act which provides:
“The Court may, in child-related proceedings
a)receive into evidence the transcript of evidence in any other proceedings before:
(i)the court; or
(ii)another court; or
(iii)a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a) (i) to (iii).
The Explanatory Memorandum to the Bill introducing the section provides (pp 70-72):
29. Subsection 69ZX(3) inserts a modified version of section 86 of the Native Title Act 1993. It provides that the court may, in child-related proceedings, receive into evidence the transcript of evidence in any other proceedings before a court or tribunal and draw any conclusions of fact from the transcript that it thinks proper. The court may also adopt any recommendation, finding, decision or judgment of any court or tribunal.
30. This amendment implements recommendation 5 of the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The Report found that such a provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child pursuant to subsection 68F(2). It suggested that, in the case of an Aboriginal or Torres Strait Island child, such an approach would assist a court in informing itself of the content of the relevant kinship obligations and child-rearing practices wherever such reliable information exists. In this regard, the provision is relevant to new section 61F (inserted by item 14 in Schedule 1) which requires the court to have regard to the kinship obligations and child-rearing practices that are relevant to an Aboriginal or Torres Strait Islander child.
31. This provision does not apply only to proceedings concerning an Aboriginal or Torres Strait Islander child. It applies to all child-related proceedings. In this respect, the provision implements recommendation 48 of the LACA Report. The Committee was of the view that extending the provision to all children would be helpful and may assist in addressing issues surrounding claims of family violence and abuse. The note to subsection 69ZX(3) clarifies that the subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
That a court should adopt findings by another judicial officer in respect of issues currently contentious before the court and which were contentious before that other court is, at least to me, somewhat “counterintuitive”. Nevertheless, the section is in plain terms. Subparagraph (a) appears on its face unrestrained in terms of the conclusions of fact that may be drawn from transcripts in other proceedings. So, too, the permission afforded by subparagraph (b) refers to the adoption of “any” of the named matters including, relevant to this case, any “finding” or “judgment” of “any court”. The language is, then, permissive and unrestrained. The section can also be seen to be consistent with an overall legislative purpose evident in Division 12A of Part VII, in which s 69ZX(3) is contained. (See, eg, s 69ZN(7); s 69ZQ; s 69ZT(1) and s 69ZX itself).
As a result of the mother’s oral evidence, it might be thought that any counselling process for her is contra-indicated. Yet, I consider the mother was, in fact, confining its prospective utility to such as might challenge her beliefs. Be that as it may, the mother will face a set of new challenges as a result of these Orders, not least of which will be her sense of loss and grief as a result of them and the very considerable challenge of putting into practice the regime contemplated. There is, in those circumstances, a role for s 65L.
Parental Responsibility
I repeat what I said earlier about the clear present inability, and likely future inability, for these parties to co-operate at all about any issues affecting J. I consider that any attempt for the parties to agree upon, or to discuss, any aspect of the child’s care, welfare and development is likely to be fraught with mistrust, antipathy toward each other and conflict at every level.
I consider that this situation should be met by the father – the parent I have determined should be responsible for the child’s day-to-day care – having sole parental responsibility for him. Equally though, as earlier referred to, that should not mean that the mother has no voice, or that her rights as a parent are not recognised in a way consistent with my overall judgment about the child’s best interests.
I consider these matters can best be accommodated by orders which require the father to inform the mother (in writing) of all prospective decisions about “major long term issues” (as defined in the Act) and affording her the opportunity for (written) input before, ultimately, making the decision.
I order accordingly.
I certify that the preceding two hundred and fifty-nine (259) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy delivered on 19 January 2011.
Associate:
Date: 19 January 2011
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