Dunstable and Dunstable

[2012] FamCA 1009

FAMILY COURT OF AUSTRALIA

DUNSTABLE & DUNSTABLE [2012] FamCA 1009

FAMILY LAW – CHILDREN – where the mother seeks interim orders changing a time arrangement which has existed, by agreement between the parties, for two years – where the mother makes allegations of physical and sexual abuse against the father – where the father denies the mother’s allegations – whether orders should be made on an interim basis altering the existing care arrangement – where the matter is set down for trial in approximately two months – where the father provided certain undertakings – where, given the nature of interim proceedings, the evidence is insufficient to found such orders

Evidence Act 1995
Family Law Act 1975 (Cth)

Goode v Goode (2006) FLC 93-286

Re K (1994) FLC 92-461

APPLICANT: Ms Dunstable

RESPONDENT: Mr Dunstable

FILE NUMBER: BRC 10520 of 2012

DATE DELIVERED: 26 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 26 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Catton of Schultz Toomey O’Brien Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Hawkes of Adrian Hawkes Lawyers

Orders

AND UPON THE UNDERTAKINGS BY THE FATHER and without admission that

(A)Until further order he will not allow his girlfriend Ms B to come into contact or within 50 metres of the child C whilst she is in his care;

(B)Until further order he will not attend the mother’s residence or residence the child is residing in whilst in the mother’s care;

(C)He will pay any filing fee payable for the Response to an Initiating Application filed by leave today within 7 days of today.

IT IS ORDERED

1. That time to enable the urgent hearing of the Applicant’s Application for Interim Orders is abridged.

2. That the matter be adjourned to the judicial duty list at 10.00am on 18 February 2013 in the Brisbane Registry of the Family Court of Australia.

3. That pursuant to Section 62G of the Family Law Act, the parties and the child and all other persons requested by the family report writer are to attend upon a family report writer nominated by the Manager, Child Dispute Services for the purposes of participating in interviews on 24 January 2013 on Level 3, Commonwealth Law Courts Building, 119 North Quay, Brisbane, and that such report be available, if possible, by 18 February 2013.

   (a)For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to this matter.

   (b)The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

   (c)The parties shall do all such things, sign all such documents, pay equally all such reasonable fees and attend all such appointments and ensure the child attend all such appointments as are reasonably required and necessary for the preparation of the Family Report.

4. That the interests, in these proceedings, of the child C born … June 2004 (“the child”), be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

5. That the Applicant be granted leave to issue a subpoena to the Department of Communities, Child Safety and Disability Services to produce any documents in relation to the parties, the child C and the child D.

6. That the matter be listed for a Conciliation Conference, in respect of property proceedings, before a Registrar at a time and on a date to be advised.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the child C born … June 2004 live with the Mother for one week and live with the Father for one week, on a week about basis, in each fortnightly cycle with changeovers to occur at 2:30 p.m. on a Friday at a place to be agreed between the parties and failing agreement at E Street, F Town.

IT IS FURTHER ORDERED

1. That 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 by this Court under the pseudonym Dunstable & Dunstable has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10520 of 2012

Ms Dunstable

Applicant

And

Mr Dunstable

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Time was abridged by a Registrar so as to permit the hearing, on an urgent basis, of an issue on the application filed by the mother of C born in June 2004 which was filed on 20 November 2012.  The father was served with that material and leave was given this morning, subject to an undertaking to pay the appropriate fee within seven days, to file a response and an affidavit, the latter of which was sworn today 26 November 2012. 

2. The gravamen of the application and the ostensible reason for the abridgement of time can be seen contained in a Notice of Child Abuse, Family Violence or Risk of Family Violence also filed by the mother on 20 November 2012.  That document refers to “the alleged abuse” and in the following the paragraphs says: 

3. In September 2012 the child … was physically assaulted by her father’s de facto partner … when she was hit with a belt causing significant bruising to both legs.  This event was disclosed by the child to her mother, her older brothers and a counsellor, Mr G. 

   When the child was in her father’s care, the child was exposed to sexual activity.  In or about September 2012, the child was forced to strip naked in front of her stepbrothers, father and his de facto partner and was required to swim in a dam where her father and his de facto partner were engaging in sexual intercourse. 

   The child has been assaulted by her stepbrother, [H] who threatened to stab her with a knife.  The child says [H] punches her and has threatened to kill her and chop off her head. 

   The child has been exposed to sexual activity between her father and his de facto partner.  Describing seeing them cuddling and kissing naked via video surveillance which is installed through the father’s house. 

   The child has informed her mother that on one occasion, August or September 2012, she started bleeding when she was urinating.  The child has been told BY her father not to talk about what happens at his house. 

4. Discussion between the solicitors for the parties, and between the bar table and the bench, produced a number of developments consequent upon the filing of the material to which I had just referred. 

5. Significant among them, for reasons which will become important shortly, the father through his solicitor gives two undertakings.  The first is: 

   a)My girlfriend, [Ms B], shall not come into contact or within 50 metres of the child, [C] whilst she is in my care (until further order). 

   b)That I will not attend the mother’s residence or residence the child is residing in whilst in the mother’s care (until further order). 

6. Although the undertaking makes no reference to this, I assume that each of those undertakings is given without admission by the father and I will proceed on that basis. 

7. Those undertakings mark the first of the changed parameters within which the hearing ultimately proceeded before me. Other changes to those parameters occur by reference to an acceptance by both parties that the court should appoint an Independent Children’s Lawyer and to also arrange for a family report to be prepared pursuant to section 62G of the Family Law Act 1975 (Cth) (“the Act”).

8. By reference to the decision of the Full Court in Re K (1994) FLC 92-461, a number of the matters there referred to can be seen to be applicable in this case and as such persuade me that it is in the interests of C that an Independent Children’s Lawyer be appointed.  By reference to those matters it can be seen that there are allegations here of: 

   a)serious family violence;

   b)family violence as between the father and his girlfriend (previously de facto);

   c)the children of the father’s former partner having made threats to the child;

   d)the issues raised by the mother in her notice of risk that allude to behaviour of sexual impropriety by the father;

   e)conflict between the parties of high intensity and apparent intractability; and

   f)the adult first child of the parties and the near adult second child of the parties being involved in the family conflict and in particular there being formal statements given by the father and his former partner that alleged criminal conduct by those older children towards him. 

9. The issues just described that point to the appointment of an Independent Children’s Lawyer, also point to the need for the court to have the benefit of a family report prepared by a child dispute officer attached to this court. In addition to the matters just referred to, the child who although only eight, is said to have expressed views within the meaning of section 60CC of the Act, both to her mother and, more specifically, to a counsellor whom the mother has been seeing and about which more will be said in a moment.

10. Consequent upon the preparation of the family report and the appointment of an Independent Children’s Lawyer, this matter will be heard by way of further interim hearing on 18 February 2013 in the judicial duty list. 

11. As a result of all of those matters the issue for determination becomes competing applications for interim parenting orders but within the parameters formed by the matters to which I had just referred.  In addition, of course, is the fact that these are interim proceedings. 

12. I am acutely aware of the principles applicable to those proceedings and what the Full Court had to say in that respect in the decision of Goode v Goode (2006) FLC 93-286.

13. In particular, two things are raised by that decision. The first is that these interim proceedings are conducted on a significantly curtailed basis where findings of fact about disputed matters directly relevant to the decision to be made cannot be made by the court. The court therefore has to have regard to matters which are admitted, less contentious matters, or matters about which there could not reasonably be any dispute. Secondly, and allied to that, the nature of the proceedings is a significantly curtailed one. Within those confines, Part VII of the Act, and s 60CC in particular, apply.

14. The background to these proceedings, within the parameters to which I had just referred, can be seen to involve allegations by the mother of longstanding serious family violence.  Those allegations concern conduct perpetrated, allegedly, by the father towards the mother and, significantly as it seems to me, conduct perpetrated by the father towards each of the older two children of the marriage.  One of those children is, as I have said, an adult now and the second is about sixteen and a half.  Secondly, the background can be seen to include assertions of violence occurring as between the father and his former de facto partner, now girlfriend. 

15. In that respect, a broader context is that admitted violence occurred when the child was present in the house, although not present for the actual incident the subject of the affidavit material. 

16. The background includes not only allegations of longstanding significant family violence, which I should hasten to add is denied by the father, but also includes a violent incident involving the father and his adult son which is the subject of a formal complaint made by the father to the police about his own son.  Statements given by the father and his girlfriend to the police in respect of that incident are exhibited to his affidavit. 

17. The father also deposes in his affidavit to an incident allegedly occurring late in October 2012 involving both the older and younger boy.  It is deposed by the father that both children came to his residence where he says he and his girlfriend were present and that a violent incident occurred in respect of which, I gather, a formal complaint has been made to the police in respect of threatening violence and wilful damage. 

18. This rather unattractive history and context is further added to by assertions from the mother which can be seen to have a sexual overtone, which have been alluded to by me earlier by reference to the notice of child abuse. 

19. In outlining that background briefly I seek to point out that I am conscious that family violence, as the legislation now specifically recognises (and indeed as has been recognised by this court for many years), has a much broader context and much broader ramifications than direct physical assault and those who are the victims of those assaults. 

20. The broader context referred to can be seen readily enough by looking to the legislation and how family violence is defined.  So, too, the legislation is now plainly cognisant of the manner in which proven family violence extends in its effects beyond the physical ramifications of an assault into the emotional and psychological impacts that such conduct has upon the short, medium and long-term development of children. 

21. Against that background, must now be added circumstances directly relevant to the decision to be made today. 

22. First, the allegations of violence, and indeed other allegedly improper conduct, are, if resolution does not first occur, to be the subject of a later trial at which all relevant allegations can be tested and findings made.  In the intervening time a very significant matter is that for more than two years, that is to say since the child was about six, the parties have, by agreement between them, arrived at arrangements whereby the child has spent each alternate week with her parents. 

23. Also into that context, falls the fact that each of the two boys has spent varying periods of time with their father.  Each of those two boys are now, it seems plain, estranged from their father. 

24. Accordingly, although the material contains very significant allegations of serious violent conduct there were, nevertheless, the consensual post-separation care arrangements that I had just referred to. 

25. The solicitor for the mother submits that it is well-known to this court that arrangements said to be by consent may well not reflect a true consent in circumstances where significant longstanding and serious violence has occurred. 

26. So much may be true, but those allegations are yet to be determined by the court. The allegations then, can be noted but no finding can be made in respect of either the denied violence or the nature of the consent given by the mother. 

27. What is plain and indeed is an undisputed fact as between the parties is that the existing care arrangements insofar as the child is concerned had been in existence for more than two years.  Accordingly, the application before me today must be seen as being an application to change longstanding arrangements with respect to her care and, as such, there should be a firm evidentiary foundation upon which the court ought proceed to do that.  It is again emphasised that any such decision is to take place against the background including the matters which I had earlier referred to and to which I will refer again in a moment. 

28. What, then, is the evidence said to necessitate a change and what is its recent origin as revealed by the material?

29. First and probably most significantly of all, the mother alleges at paragraphs 53 and 54 of her affidavit as follows:

    In about June this year, I was informed by a girlfriend of mine that [the father’s girlfriend] had stabbed [the father] during an argument at home.  [The younger of the two older boys] later confirmed to me that two ambulances had been in attendance at [the father’s] home following that incident and three police cars. 

30. Then at 54,

    I’m informed by [that same child] that both [the father] and [his girlfriend] have mutual domestic violence protection orders against each other. 

31. The facts deposed to within those paragraphs are admitted in the affidavit filed by the father.  He says,

    [Ms B] lived with me commencing in February 2011 until May 2012.  Prior to [Ms B] moving out in or about May 2012, she was suffering from depression and we were having arguments which culminated in the events described in paragraphs 53-54 of the mother’s affidavit. 

32. I observe here that, contained within that paragraph, is a deposition as to the broader context in which the child was spending time at his father’s household between February 2011 and May 2012 (as the father has it).  The father goes on to depose in that affidavit to his girlfriend being, “on new medication, has a new doctor and sees a psychiatrist and a psychologist regularly”. He goes on to depose as to difficulties which she had with an earlier medication and says that their relationship “is now much better”.

33. Of some significance, particularly in light of the fact that there are, on his admission, mutual protection orders as between he and his former de facto partner.  He deposes that they live apart, are boyfriend and girlfriend, and that they spend “a few nights together during the week”.

34. It will be plain from the non-contentious evidence before the court that this is a serious matter to which the court must give very careful consideration. 

35. Otherwise in respect of specific incidents involving what might broadly be described as family violence, the affidavit of the mother refers to a child of the father’s partner “pointing a knife at [the child] and threatening to stab her”.  The affidavit also goes on to refer to a conversation with the child in which the child said that the father’s partner’s youngest child had, “previously said to his brother in the child’s presence while they had been fighting, ‘I’ll go get the knife, shall I.’”

36. It should be observed that the mother deposes to having notified the Department of Communities, Child Safety and Disability Services of her concerns emanating from this specific incident.  The father deposes, and there is no evidence before me to the contrary, that the Department have investigated and have not substantiated any concerns about harm. 

37. In addition, the mother’s affidavit deposes to the assertion earlier referred to in the Notice of Risk of Family Violence in which the child refers to an incident where she asserts that the father’s partner had hit her with a belt causing bruising. 

38. This paragraph of the affidavit is not deposed to, and, thus, either admitted or denied by the father in his material.  There is a photograph annexed to the affidavit of bruising on the child plainly evident in the photograph. That is said to arise from the incident as described by the child. 

39. Of significant concern is paragraph 64 of the mother’s affidavit where she deposes that when the child was back in the father’s care she phoned the mother and told her that “She was lying about the belt marks on her legs and that in fact [Ms B] had not done it.”

40. The third matter, said to arise more recently than the serious history of family violence alleged, can be seen in a document which is unsigned and undated, exhibited to the mother’s affidavit. 

41. It is said to be notes compiled by a counsellor, Mr G, emanating from an interview on 10 October 2012.  It should be observed that Mr G is a counsellor who has been seeing the mother but, on this particular occasion, the mother, the child and the younger of the two boys were present.  I observe, then, that present with the child in the room was not only her mother who makes assertions against the father – including the specific recent assertions – but also one of two boys who was the subject of a formal complaint made by her father to the police in respect of his conduct. 

1. I have some significant reservations about the evidentiary value of Mr G’s observations given in the circumstances to which I have just referred.  Nevertheless, I record that the document refers to the child “including her father as one who she described as ‘bad’”.  In addition, the document records that the child has said, “The reason she didn’t like going to spend a week with [the father] and [his partner] was mainly that her dad did really hurtful things.”The expression “hurtful things” is not further particularised or explained. 

2. The child goes on, according to the document, describing an incident in a waterhole when her father is said to have pushed her in and it “was deep” and she “was frightened”.  The matters just referred to are in addition to the history of family violence earlier referred to. 

3. Those matters are part of what is said to cause the need to re-visit the “consensual” arrangement that has been place for more than two years.  In addition to those matters is a second set of allegations which hint at improper sexual behaviour on the part of the father. 

4. I use the expression “hint at sexual behaviour” not to in any sense diminish them or to indicate that I have formed any particular judgment about them but, rather, by reference to the manner in which those allegations are made. 

5. There is no allegation of any direct behaviour that might be described as improperly sexual.  Rather, behaviour is described and an improper sexual purpose or context given to it. That behaviour can be seen deposed to at paragraph 70 and following of the mother’s affidavit. 

6. The first of the matters referred to is the child describing, “An occasion where she was forced to strip naked in front of her stepbrothers to go swimming in a dam.  She said to me that on that same occasion her father and [Ms B] were on the other side of the dam practising making babies.”

7. The father denies in his affidavit any sexual conduct on that occasion which the child might have witnessed.  He admits that there was an incident where people were nude.  He describes camping in what is, at least implicitly, a relatively remote place which seems to be consistent with what the child has said to Mr G.  He says:

   The nude bathing, etcetera … incident is related to us going camping.  We all had to wash ourselves in the dam and it was during this process that we took off our clothes.  It may be that [Ms B] and I have not understood that [the child] might have been embarrassed about her taking her clothes to wash whilst camping. 

8. In other words, an explanation is given on oath by the father as to something which may have been considered embarrassing by the child and which may have caused her discomfort not apparent to the father (or, it should be said, to his partner at the time).  But, he says, any such incident had no sexual element to it.  

9. The affidavit of the mother also refers to a conversation or conversations with the child where she indicates that she had “seen her father and [Ms B] cuddling and kissing naked.”The mother goes on further to refer to video surveillance which is installed through the father’s house and, “[The child] has advised me that she sees them on the video.”

10. Even if accepted at face value, there is nothing contained in the mother’s material that suggests that the child was forced to watch any such behaviour or that any such behaviour was endured by her with her father as a means of some form of sexual impropriety. 

11. Leaving those matters aside, the father deposes to the video surveillance cameras to which reference has just been made, and admits their installation and operation.  He says that the purpose of the installing of those devices was, somewhat remarkably it might be thought, because of an earlier altercation with the parties’ eldest child who is now 18. 

12. Thirdly, the mother deposes to the child, “sometimes sleeping in bed with her father” if Ms B is away.  The father admits that the child has in fact slept in his bed.  He says that this is entirely consistent with behaviour that was exhibited by the two elder children when they were young and something which each of the parties knew about and did not object to.  Again, any form of sexual connotation attributed to the behaviour is denied. 

13. Finally, the mother refers to the child “advising her” that while she was at her father’s house about two or three months ago, she “started bleeding when she was weeing.”  The mother deposes to the child “being very upset when she told me this” and said “it has only happened the once”. 

14. The mother says, however, that she has not taken the child to be medically examined as the child does not wish to talk about it any more. Apparently, at least on the face of her affidavit, the mother has not consulted any medical or other specialist about that incident nor sought advice from any such medical specialist about the incident described in the affidavit. 

15. It can be seen, then, that the matters of alleged family violence and what are said to be concerns about sexual behaviour have founded the mother’s application and, indeed, might be seen to have founded the application to abridge time so as to permit it to be dealt with on an urgent basis. 

16. It is in that context that the mother’s application initially sought orders that time between the father and the child be supervised by, a contact centre situated geographically within a reasonable distance of where the parties reside. 

17. I suggested to the solicitor for the mother that I could take judicial notice of the fact (see section 145, Evidence Act 1995 (Cth)) that given neither of the parties had undertaken an intake interview and that it was coming towards the end of the year with Christmas and the school holidays soon upon us, that considerable difficulties might be experience in that occurring. That combines with the notoriously significant demands on contact centres when compared to the capacity to meet that demand.

18. Obviously, I was not suggesting any precision in that respect but the solicitor for the mother, whilst unable to give any information from the contact centre itself, properly acknowledged, as it seems to me, the difficulties at which I had alluded to and, tacitly at least, accepted that there would be a very significant restriction on the time that the father would be able to spend with his daughter during the school holidays. 

19. For his part, the father’s response sought interim orders consistent with the final orders sought which would see the child living with him and with him having sole parental responsibility for the child. He proposed her spending time with the mother each alternate weekend from afterschool Friday until Sunday at 4.00 pm. 

20. Consequent upon the father providing the two earlier undertakings to which I have referred together with the other orders proposed for the appointment of an Independent Children's Lawyer, a family report and a further interim hearing in mid-February (about ten weeks or so time), the mother, understandably enough it might be thought, altered her position so as to seek an order that the child spend time from afterschool Friday until Sunday afternoon with her father. 

21. The change in the mother’s position properly, in my view, took account of a significant fact, namely that risk is not an absolute concept. Plainly enough, a “risk of harm” as the Act refers to it, is a significant issue; indeed the most significant issue in the proceedings before me. It is an issue which arises from a significant context of allegations of family violence and the Act now mandates that it is to be given particular consideration (see s 60CC(2)(a)).

22. So too, these proceedings need to be judged in the context of the Objects and Principles of the legislation set out within Part VII to which reference has been made by the Full Court in Goode. 

23. I am acutely aware of those statutory considerations and principles.  I’m also aware of the task which the Full Court in Goode illuminates as being the task for this court when hearing applications for interim parenting orders.  When the issue before the court in interim proceedings is risk of harm to a child, then, plainly enough, the court should proceed conservatively. 

24. But as I have said, risk is not an absolute concept.  It does not exist in a vacuum but is referrable to the facts and circumstances which pertain to a particular case.  In particular, regard must be had to the evidence and matters it reveals by which some measure of confidence can be had that any risk present on the evidence (within the limitations to which I have earlier referred) is ameliorated. 

25. Here, there seems to me to be a number of considerations that can be seen to ameliorate any risk alleged by the mother within the material to which I have just referred. 

26. First, and very significantly, as it seems to me, is the undertaking given by the father in respect of his partner.  The second is the undertaking given by him in respect of attendance at or near the former matrimonial home.  Thirdly, there is an Independent Children’s Lawyer who is statutorily obliged to protect the interests of children and to make all such inquiries and require of the parties all such things as are relevant to protecting the children and representing their interests during the currency of that appointment.  An Independent Children’s Lawyer will be appointed by my orders today. 

27. In very simple terms, that appointment together with the pendency of further proceedings in this court and the fact that this matter will come back before the court in about 10 weeks time or so, should be a very significant indication to each of the parties that they are, putting it crudely, being watched.  It seems to me that that is a significant matter in respect of any amelioration of any asserted risk.  

28. More broadly, in cases of this type where risk is at its centre, experience shows that the court can be confident that any matters said to point to, or away, from any such alleged risk will almost inevitably find their way into affidavit material and/or family reports to be prepared. 

29. The next matter which in my view ameliorates the risk is the knowledge of both parties that a trained expert will be speaking to them, the child and indeed all such other people whom he/she might consider appropriate, including for example, the father’s partner and the adult or near adult children of their relationship, including seeking their views in respect of the matters directly relevant to the court’s determination. 

30. Once again, it will be plain to both parties that that report process is a significant matter within the context of these proceedings.  It seems to me that its pendency is also a matter that alleviates against the asserted risk to which I have earlier made reference. 

31. I consider it most important that, whatever might be the rights and wrongs of what has or has not occurred during time that the child has spent with her father during the course of his relationship with his partner, the direct allegations and assertions made by the child can, in my view, be seen to be directly referenced to that relationship speaking in the broadest sense. 

32. One has to be troubled about the broader environment of that relationship to which the child was exposed during her time with the father but in terms of risks, it seems to me that the undertaking given by the father in respect of time spent with him being as it were isolated from his former partner, is a very significant issue in respect of the amelioration of risk when regard has had to the evidence before me of what that risk actually is. 

33. If the court can be confident that the risks identified in the evidence can be ameliorated by reference to the matters just referred to in the period of approximately 10 or 11 weeks until this matter comes back before the court, the relationship between the father and the child becomes important as the provisions of legislation plainly dictate. 

34. The child is but eight years of age and is in grade two.  Her views, in the sense in which that expression is used in the legislation, must be tempered by that fact.  I do not regard her as being of sufficient maturity such that her views would be taken to be effectively determinative of the orders that ought to be made by the court.  Having said that, the voices of children should be heard in these proceedings and regard should be had to what they say. 

35. I intend to no criticism when I say that I am somewhat troubled though by at least a significant number of the child’s views having being filtered through a process where she was speaking to, effectively, a stranger albeit an apparently trained stranger, but in circumstances where both her mother and a brother who is plainly, on any view, caught up in the family conflict was also present.  I take that into account when considering her views. 

36. I also take into account that for an eight year old child, she has plainly already experienced much in her young life and that is highly likely to have caused her significant emotional and psychological issues.  Not least of those, of course, whoever might be in the “right” or “wrong”, she has on any view of it, in my judgment, been exposed to very significant conflict which it is of course of itself harmful. 

37. I am particularly conscious of the fact, again, I emphasise within the parameters to which I have earlier referred, that the orders proposed by either party will effect a significant change for the child to care arrangements which have occurred now for more than two years.  Those two years embrace, significantly, the ages of six through eight and her starting and continuing in her first couple of years of school. 

38. The Act specifically requires me to take account of changes and separations and the likely impact upon a child and I consider that to be a significant factor in this case. 

39. Specifically, it’s said that that factor should raise its head in respect of the issue of school.  There is a reason given by the mother for changing the child’s school.  The merits of that decision are likely to await further data and, ultimately, if necessary a court decision based on the findings there made.  The school year is all but finished.  I don’t propose to change the child’s school back in the very short amount of time that remains of the school year. 

40. Otherwise, it seems to me that by reference to what I have referred to in these short reasons as the parameters within which this decision is made.  The most concerning issue is the matter of risk. 

41. Were it not for the undertakings and the other processes to which I have earlier referred including each of the parties knowing that they are, as it were, “under scrutiny”, I would be persuaded, perhaps, to make other orders. 

42. However, in the context of those matters to which I have earlier referred, it seems to me that the risk evident on the material before me has been ameliorated to the extent where it ought be balanced against the benefit to the child of continuing the relationship that she has erstwhile had with her father in the relatively short period of time until this matter is next before the court. 

43. I am not persuaded by reference to any material that I have seen that the child’s primary care should, in the intervening time, be placed with either the mother or the father. 

44. I am persuaded that the current arrangement in respect of week about time between her parents should continue, but subject to the undertakings, and other orders to which reference has earlier been made. 

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 26 November 2012.

Associate: 

Date:  5 December 2012