Ellis and Massimino-Ellis
[2013] FamCA 738
•27 September 2013
FAMILY COURT OF AUSTRALIA
ELLIS & MASSIMINO-ELLIS [2013] FamCA 738
FAMILY LAW – CHILDREN – Where it is in the child’s best interests that the mother have sole parental responsibility and for the child to live with her and inform the father – Where the parties cannot agree how often the father should spend time with the child and whether supervision is necessary – Whether there is a risk that the father could interact with the child in a sexualised manner - Where it is appropriate that the father spend limited time with the child, initially on a supervised basis in order to promote a meaningful relationship between the father and the child.
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC
Briginshaw v Briginshaw (1938) 60 CLR 336
Champness & Hanson (2009) FLC 93-407
G & C [2006] FamCA 994
Leighton & Carey [2010] FamCAFC 94
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
APPLICANT: Mr Ellis
RESPONDENT: Ms Massimino-Ellis
INDEPENDENT CHILDREN’S LAWYER: NSW Legal Aid
FILE NUMBER: PAC 4586 of 2009
DATE DELIVERED: 27 September 2013
PLACE DELIVERED: Sydney
PLACE HEARD: Parramatta
JUDGMENT OF: Loughnan J
HEARING DATE: 2 - 4 September 2013 REPRESENTATION
SOLICITOR FOR THE APPLICANT: Michael Vassili Lawyers
COUNSEL FOR THE RESPONDENT: Ms Christie
SOLICITOR FOR THE RESPONDENT: Watkins Tapsell Lawyers
ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P Walkden Orders
(1)The mother shall have sole parental responsibility for all major long term issues in respect of the child of the marriage namely, B, born … 2007 (hereinafter “the child”) save that the mother shall, prior to making the ultimate decision about any such issue:
(a)advise the father in writing of the decision she intends to make;
(b)seek the father's written response in relation thereto;
(c)consider by reference to the best interests of the child, any such response; and
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
(2)The child shall live with the mother.
(3)The child shall spend time with the father as follows:
(a)on alternate Saturdays from 9.30 am until 1.30 pm for a period of nine months with changeovers at C Centre (or such other place as may be agreed);
(b)that time will be supervised by Mr D or such other person as the parties agree upon in writing;
(c)after nine months the time shall be from 9.30 am to 5.30 pm and for the next three months, shall be exercised with Mr D or such other person as the parties agree upon in writing, in the vicinity of the child;
(d)thereafter, the father’s time with the child will be unsupervised; and
(e)once the child attains the age of 13 years, for such additional times as the parties may agree in writing.
(4)In relation to any dispute about the arrangements for the child to spend time with her father pursuant to 4 (e) above the parties shall attend for Family Dispute Resolution.
(5)The father’s time pursuant to Order 3 shall be suspended for two weeks per calendar year as nominated by the mother and notified to the father 28 days in advance provided that the father shall have time with the child in lieu of that period or those periods in accordance with the regime in place pursuant to that order at the time of the suspension, on a day or days nominated by the father within two months of the date or dates affected by the suspension or within such greater period on which the parties may agree.
(6)For a period of two years following the date of these orders or for such further period as may be deemed appropriate by the therapist, the parties shall engage with an appropriate therapist to be nominated by the Independent Children’s Lawyer for the purposes of assisting of the child and the parties to progress from the current arrangements
(7)The Independent Children’s Lawyer has leave to provide the therapist with a copy of the Single Expert Report herein.
(8)In the event that the child is in the care of the father pursuant to these orders on the Mother’s Day weekend, she shall be returned to the mother at 6.00 pm on the Saturday.
(9)In the event that the child is not otherwise in the care of the father pursuant to these orders on Father’s Day, she shall spend from 9.30 am to 5.30 pm with the father on that day.
(10)The father and the mother are hereby restrained from:
(a)subjecting the child to any form of physical discipline or striking; and
(b)showing the child any document pertaining to these proceedings or discussing with the child or within her hearing any allegation made in these proceedings.
(11)The father is hereby restrained from :
(a)consuming or being under the influence of alcohol whenever he is spending time with the child;
(b)from accessing or using any form of pornography or adult literature when the child is in his care; and
(c)engaging in any form of sexual activity when the child is in his care.
(12)Within fourteen (14) days of the mother providing a Passport Application for the child to the father, he shall sign and return the said Application to the mother. The mother shall be solely responsible for and shall retain any passports issued in the name of the child.
(13)The mother shall within seven days sign an authority to the child’s school to authorise the school to provide the father with copies of school reports ordinarily provided to parents.
(14)The father is at liberty to attend at school functions and sporting events ordinarily attended by parents.
(15)Within a period of six months from the date of these orders each of the parties shall pay to Legal Aid NSW the sum of $3,419.75 towards the costs of the Independent Children’s Lawyer herein.
(16)Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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.
(17)Leave is granted to the parties to apply within 28 days, on giving at least seven (7) days’ notice to the Court and each other in relation to the wording of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ellis & Massimino-Ellis 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 FILE NUMBER: PAC 4586 of 2009
Mr Ellis Applicant
And
Ms Massimino-Ellis Respondent
REASONS FOR JUDGMENT
Introduction
1.These are parenting proceedings involving B (“the child”) who was born in 2007 and at the time of the hearing, was six years of age.
Applications
2.The father sought the following orders:
a)That the child shall live with the mother
b)That the child shall spend time with the father as follows:
i) For the first four weeks, each Saturday 9.30 am - 12.30 pm
ii) Between 4 - 8 weeks from the date of these orders each Saturday 9.30 am - 4.30 pm
iii) After 8 weeks from the date of these orders and until the commencement of the 2014 school year:
(1)Each Saturday 9.30 am - 4.30 pm
(2)Each alternate Sunday 9.30 am and 4.30 pm
iv) That from the commencement of the 2014 school year the child shall spend time with the father as follows:
(1)Each weekend from the end of school on Friday until the beginning of school on Monday
(2)Half of each school holidays
c)That if changeover does not occur at the child's school then changeover shall occur at the [C Centre] at [C Town].
d)That for the first six months from the date of these orders, the child's time with the father shall be spent in the presence of the child's half-brother, [E], [Mr F] or his partner, [Ms G].
3.In final submissions the father’s solicitor said that the father now proposed that supervision of his time with the child be undertaken by Mr D or if he is not available, by a professional supervisor. In the event that the Court does not make those orders and the proposals of the Independent Children’s Lawyer (“ICL”) find favour, the father would adopt those proposals but in lieu of 3(c) he proposes:[1]
3(c)the child shall spend time with the father during the September 2014 and 2015 school holidays
a) Commencing 9am on the first Friday of the school holidays and ending at 9am on the Monday
For the purposes of such time between the child and the father the time shall
2014 (26th September commencing and ending 29th September.)
2015 (25th September commencing and ending 28th September.)
For the purposes of facilitation of the time between the father and the child such time shall be supervised by [Mr D].
[1] Exhibit 17
4.The father’s solicitor also said that the father would abide orders restraining him from doing things that it was alleged he had done. The father reserved his position in relation to parental responsibility.
5.The mother sought orders in terms of the Proposed Minute of Orders submitted on 2 September 2013:
1That the Mother shall have sole parental responsibility for the child [B], born … 2007 (“[the child]”).
2The child of the marriage, [B], born … 2007 (“[the child]”) shall live with the Mother
3[The child] shall spend time with the Father as follows:
3.1 The last Saturday of each month, from 12:00pm to 4:00pm,
3.2 Should either party wish to change contact from the last Saturday of the month to a Saturday of that month being either side of the child's birthday, Father's Day, Christmas, Father's birthday, or E's birthday, 28 days notice is to be given in writing.
4That the Father's time pursuant to Order 3 shall be suspended as follows:
4.1 For two weeks per calendar year as nominated by the mother and notified to the father 28 days in advance.
5For the purposes of Order 3 above, pickups and drop-offs are to occur at the [Suburb H Centre] or such other public location mutually agreed upon by the parties.
6Father shall have telephone contact with the child on special occasions, which shall be initiated by the child. The phone calls shall occur on:
6.1 Father's Day
6.2 Christmas
6.3 The Child's Birthday
7The Father shall have telephone contact with the child on his birthday and [E's] birthday which shall be initiated by the Father. The phone call shall be placed from the Father's telephone with caller ID displayed, to a telephone number nominated by the Mother, between 6pm and 7pm.
8From the date of these Orders, the Father's time pursuant to Order 3 above, shall be supervised by either:
8.1.1 [Suburb H Centre];
8.1.2 The Father's relative, Mr D; or
8.1.3 A professional supervisory service to be agreed upon by the parties
9Father shall be responsible for bearing all costs of supervision. If Father incurs additional costs for the supervisor based on activities that he has planned for his time (i.e. tickets, meals, etc.) they shall also be the Father's exclusive responsibility.
10The Father shall not consume any alcohol for twelve hours before or during his time with the child.
11The father shall not engage in any sexual activity or engage with any pornographic or sexual material during his time with the child.
12The Mother and Father are hereby injuncted and restrained from :
12.1 Denigrating the other party in the presence and/or hearing of the child;
12.2 Discussing any allegations made in these proceedings, including but not limited to allegations of violence, sexual abuse, sexual deviancy, alcohol abuse and psychological conditions in the presence and/or hearing of the child.
12.3 Showing the child any documents filed in these proceedings.
13That within seven (7) days of the child attending a new school, the Mother shall forward a written authority to the school which the child attends from time-to-time, to provide copies of all school reports and school photographs to the Father. (It is noted that the Mother has sent this authority to the child's current school).
14That within fourteen (14) days of the Mother providing a Passport Application for the child to the Father, the Father shall sign and return the said Application to the Mother. The Mother shall be solely responsible for and shall retain any passports issued in the name of the child.
6.However, the mother’s counsel later explained that the mother would accept the formulation of the ICL’s proposed orders in relation to parental responsibility. The mother does not adopt the ICL’s proposals in relation to the removal of supervision (or indeed generally) but in the event that supervision is to be removed, it is the mother’s strong view that should not occur before the child turns nine years of age.
7.The ICL’s proposals were set out in a draft document[2] submitted during final submissions on 4 September 2013. That document was provided in final form by email on 9 September 2013. The ICL sought:
[2] Exhibit 15
1.That the mother shall have sole parental responsibility for all major long term issues in respect of the child of the marriage namely, [B], born … 2007 (hereinafter '[the child]') save that the mother shall, prior to making the sole ultimate decision about any such issue:
a. Advise the father in writing of the decision she intends to make;
b. Seek the father's written response in relation thereto;
c. Consider by reference to the best interests of the child, any such response; and
d. Advise the father in writing as soon as reasonably practicable of her ultimate decision.
2.The child shall live with the mother.
3.The child shall spend time with the father as follows:
a. On alternate Saturdays from 9:30am until 12:30pm for a period of two months with changeovers at [C Centre] (or such other place as maybe agreed);
b. Thereafter, for a further period of two months, from 9:30am until 2:30pm with changeovers at an agreed public place;
c. Thereafter, for a further period of two months from 9:30am to 5:30pm;
d. During the first three months of this period, the father's time with the child shall be supervised by [Mr D] and in the event [Mr D] is not available by a professional supervision service;
e. For the following three months, the father's time shall take place in general presence of [Mr D] or a professional supervisor.
f. Thereafter, the father shall spend time with the child for one day each weekend in alternate weeks from 9:30am until 5:30pm on an unsupervised basis.
Commencing in March 2014, the child shall spend additional time with the father on her birthday, special events such as Christmas, Easter, father's birthday, father's day and for periods of two to three days during school holidays and on those occasions the time shall be from 9:30am until 5:30pm and not on an overnight basis.
4.The parties shall engage with an appropriate therapist to be nominated by the Independent Children's Lawyer for the purposes of assisting the child and the parties to progress from the current arrangements for a period of two years following the date of these orders or for such further period as may be deemed appropriate by the therapist; The Independent Children's Lawyer shall have leave to provide the therapist with a copy of the Single Expert Report herein.
5.The arrangements for the child to spend time with her father shall be reviewed in 2020 at which time the parties shall attend for Family Dispute Resolution and unless otherwise agreed, the child's time with the father shall be as follows:
I. From the commencement of term 1 in 2020 and concluding at the end of term 2, on alternate weekends from after school on Friday until 7:00pm on Saturday;
II. Commencing in term 3 in 2020:
a.During school term, from after school on Fridays until the commencement of school on Mondays and commencing on the first weekend of each term, thereafter in alternate weeks;
b.For one week in the September 2020 school holiday period;
c.For two weeks during the December 2020 – January 2021 school holiday period; and
d.Commencing in 2021, during school term, on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday commencing on the first week of each school term;
e.Half of each school holiday period; and
f.On the father's day weekend from 6 pm on the Saturday until the commencement of school on Monday;
g.Such other time as may be agreed.
6.That the father and the mother be and are hereby restrained from:
a. subjecting the child to any form of physical discipline or striking, and
b. showing the child any document pertaining to these proceedings or discussing with the child or within her hearing any allegation made in these proceedings.
7.That the mother shall within seven days sign an authority at the child's school to authorise the school to provide the father with copies of school reports ordinarily provided to parents.
8.That the father be at liberty to attend at school functions and sporting events ordinarily attended by parents.
9.The parties shall each contribute the sum of $3,419.75 towards the costs of the Independent Children's Lawyer herein within a period of six months of the date of these orders.
10.Such further Order as this Honourable Court deems appropriate.
11.In the event that the child is in the care of the father pursuant to these orders on the Mother's day weekend, she shall be returned to the mother at 6 pm on the Saturday.
12.That the father be and is hereby restrained from :
a. consuming or being under the influence of alcohol whenever he is spending time with the child.
b. from accessing or using any form of pornography or adult literature whenever the child is in his care.
c. engaging in any form of sexual activity whenever the child is in his care.
Written Evidence
8.The father relied on:
Affidavit of the father sworn 29 August 2013
Notice of Child Abuse or Risk of Abuse filed by the father on 19 November 2012
9.The mother relied on:
Affidavit of the mother sworn 18 July 2013 and filed 23 July 2013
Affidavit of Mr Massimino sworn 23 July 2013 and filed 24 July 2013
Affidavit of Mr D sworn 29 August 2013
Notice of Child Abuse or Risk of Abuse filed by the mother on 7 September 2009
Expert Evidence
10.The following expert evidence was relied on:
Report of Single Expert Dr I dated 17 May 2012
The Hearing
11.The hearing commenced on 2 September 2013. On 4 September 2013 judgment was reserved.
Short History
12.In 1964 the father was born. As at the date of the hearing he was 39 years of age. In 1973 the mother was born. As at the date of the hearing she was 40 years of age. The parents met in 2004 and married in 2006. The child was born in 2007. The father says the parties separated on 18 June 2009 but the mother says they separated in November 2007. The evidence suggests that the mother may be correct.
Credibility and Submissions
13.The father greatly struggled with the process of cross-examination. He was unresponsive and tried to address at some length what he saw as the argument behind each question. The many attempts to have the father limit his answers to the questions asked were largely unsuccessful. I note that the single expert Dr I made critical observations[3] about the father’s style of communication arising out of their interaction. Dr I reported that his experience of the father mirrored the mother’s description of him: “You can’t have a discussion with him. He just keeps repeating his opinion, even if it’s totally wrong, and gets louder and louder, and won’t listen.”
[3] Paragraphs 106 and 107 of Dr I’s Report.
14.For the avoidance of doubt, I accept that the father’s statements during cross-examination like “I am a bad father” were intended sarcastically and not as an admission of any deficit in his parenting.
15.It is possible that the father believes that his versions of events are accurate and therefore did not set out to mislead the Court. Nevertheless the father was generally unresponsive during cross-examination and was not a reliable witness.
16.The mother was a thoughtful witness. On many occasions she paused to consider the question asked of her and appeared to answer carefully. Her case contains many concessions against interest, such as the concession that on 7 June 2009 she allowed the child to remain in the presence of the father while he masturbated in order that she could obtain video proof of that behaviour. When she was challenged by Ms Karagiannis for the ICL about failing to protect the child from repeated inappropriate behaviour by the father, she simply conceded that she did not take the necessary action. In other words it is the mother’s evidence that on many occasions she was unable to or in any event did not, protect the child and E from the father’s conduct. That reflects poorly on the mother. However, I did not detect any intention by the mother to deceive the Court.
17.For those reasons, where there is a conflict in the evidence of the parents on matters about which they are both in a position to give first hand evidence, I generally prefer the evidence of the mother. In relation to some of those issues however, findings are not possible because the Court needs to be satisfied on something more than the bare balance of probabilities.[4]
[4] Evidence Act (Cth) 1995, s 140
Background Facts
18.In 1997 E, the child of the father and Ms J was born. As at the date of the hearing he was almost 16 years of age.
19.In 2004 the parties commenced a relationship.
20.In 2006 the parties married and commenced cohabitation.
21.In 2007 B was born.
22.The mother said that the parties separated for the first time a few days after she brought the child home from the hospital to the parties’ Suburb K unit on 28 July 2007. The father left for one week, returned for two weeks and then moved out for about two months. In November 2007 the father moved out of the Suburb K unit and the mother formed a view that the parties were separated.
23.In January 2008 the mother asked the father not to bathe the child because of her concerns about his preoccupation with sex.
24.The mother alleged that on 5 January 2008 she was sexually assaulted by the father.
25.The mother alleged that in February 2008 the father drove intoxicated with his son in the car.
26.In February or March 2008 the father commenced living at the L Hotel. The parties attended counselling at C Centre. The father said he was not happy with the sessions and the counsellor and no longer wanted to attend.
27.On 7 July 2008 the mother returned to work for four days per week. The child commenced attending day care three days per week, and was otherwise cared for by the mother and the maternal grandmother.
28.The mother says that on 20 May 2009 the father told her that he attended at a hospital, met with the counsellor and that his prescribed dose of Effexor was doubled. The father was allegedly extremely upset and worried about how that would affect his sexual functioning.
29.On 21 May 2009 the father told the mother he has been diagnosed with ‘Bi-polar’.
30.On 6 June 2009 the father attended at the mother’s home in an intoxicated condition and was denied entry.
31.On 7 June 2009 the father apologised for his conduct the previous day and the mother allowed him into her home. The mother took a video of the father masturbating in the lounge room while the child was also in the room.
32.On 18 June 2009 the mother made a statement to police.
33.According to the father, the parties separated on 18 June 2009.
34.On 22 June 2009 a provisional Apprehended Violence Order was granted against the father for the protection of the mother and the child.
35.On 24 June 2009 a final AVO was issued at Suburb M Local Court for a period of two years.
36.On 8 July 2009 the mother made a further police statement in relation to an alleged breach of the AVO.
37.On 16 July 2009 the mother registered her details with C Centre and instructed her solicitors to contact the father and invite him to spend time with the child at the C Centre premises.
38.On 24 August 2009 the father filed an Initiating Application at Suburb N Local Court seeking orders for equal shared parental responsibility with a week-about arrangement and sought interim orders that he spend time with the child from 6.00 pm Friday until 6.00 pm Sunday each week.
39.On 7 September 2009 the mother filed a Response seeking orders for:
·The child to live with her and sole parental responsibility;
·The father to spend time with the child on a graduated basis for 12 months at a supervised contact centre and on the first three Saturdays of the month, until the child starts school, on alternate Saturdays and Sundays from 9.00 am until 12.00 midday, by telephone on Wednesdays at 6.30 pm and that such time be supervised and that any progression be by agreement and conditional upon the recommendations of a psychiatrist;
·The father to be restrained from viewing any pornographic or sexually explicit material whilst spending time with the child and that he be restrained from engaging in any sexual acts in the child's presence or within her hearing, father to provide mother with reports from, his treating doctor every six months; and
·Orders to be reviewed when the child commences school.
The mother also filed a Notice of Child Abuse alleging that the father engaged in sexually explicit acts in the child's presence including masturbation and watching pornography; that the father told the mother he was a sex addict; and that the father sexually assaulted the mother while the child was present in the home.
40.On 10 September 2009 interim orders were made by consent at the Local Court and the matter was transferred to the Federal Magistrates Court. The interim orders provided for:
·Equal shared parental responsibility;
·The father to spend time with the child at C Centre each Saturday;
·The mother to provide notice in the event that she wished to take the child away on holidays; and
·In the event the centre is not available to supervise, that parties to arrange for an alternate contact service.
41.To their enormous credit and to the apparent benefit of the child, the parties have generally given effect to those orders since then.
42.Although the proceedings were transferred from the Local Court to the Federal Magistrates Court the matter was promptly transferred to this Court.
43.On 14 October 2010 the father's criminal charges were heard in relation to offences including stalk or intimidate, use carriage service to menace, harass and breach of AVO. The offences were proved and the father was placed on a bond for two years.
44.On 5 May 2011 orders were made for the appointment of an ICL.
45.On 30 January 2012 the parties were interviewed by Dr I.
46.In April 2012 the father commenced a relationship with Ms G. She has two children O and P who are about six and seven years of age, respectively.
47.On 14 May 2012 Dr I’s report was released to the parties.
48.On 29 November 2012 the father filed a Notice of Child Abuse alleging that the mother refused to allow E to sleep in family home, the mother constantly spoke to E in derogatory fashion and refused to care for him or provide him with a bed in the house.
49.On 4 February 2013 the mother arranged for the father to see the child on her first day of school.
50.On 19 March 2013 the mother filed a Response to an Application in a Case seeking the dismissal of the father's application.
51.On 21 March 2013 the father filed an Amended Application in a Case seeking orders that he spend time with the child on Saturdays between 9.30 am and 12.30 pm for four weeks, then on Saturdays from 9.30 am and 4.30 pm for four weeks thereafter on Saturdays from 9.30 am to 4.30 pm and on alternate Sundays from 9.30 am to 4.30 pm with changeovers at C Centre and time to be supervised by Mr F or by Ms G.
52.On 26 March 2013 the father filed an Application in a Case seeking certain orders in relation to police evidence.
53.On 23 April 2013 the father's Application in a Case was dismissed and costs of all parties were reserved.
54.On 27 April 2013 C Centre called the mother and advised her that the father was unable to attend for contact because he had been hospitalised with a suspected heart attack. The father gave evidence that he was very upset that his interim application was dismissed and that he was still required to be supervised at a contact centre.
55.On 26 May 2013 the mother facilitated make up time between the child and the father.
The Expert Evidence
56.The single expert was Dr I, a psychiatrist. His qualifications include the following degrees:
Doctor of Philosophy in Psychological Medicine (Addiction Medicine);
Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZAP);
Certificate of Advanced Training in Child and Adolescent Psychiatry 2004; and
Bachelor of Medicine, Bachelor of Surgery (Honours).
57.Dr I’s work experience between 2004 and 2011 includes working as a Medical Director and as a Visiting Medical Officer. Dr I currently works in private practice child, adolescent and family psychiatry.
58.Dr I prepared a report in this matter dated 17 May 2012.
59.Dr I’s report is well written and his conclusions are linked to his observations, the overwhelming proportion of which, were not challenged. Dr I was thoroughly cross-examined by the advocates. During cross-examination he changed one aspect of his recommendations. He gave reasons for doing so, based in particular on the records of the C Centre Contact Centre about the supervised time that occurred between the date he saw the family and the hearing. Otherwise, Dr I did not resile from any significant aspect of his report. Indeed, the parties’ proposals are broadly in accordance with his recommendations and the matters at issue, about which Dr I did express an opinion are largely matters of degree or timing, rather than matters of principle.
The Legislation
60.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
61.Section 60B sets out the objects of the Part and the principles underlying those objects. Relevantly the section provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
62.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
63.The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
64.The way in which parenting issues are decided has been discussed in a number of cases. The High Court has provided an outline and some differences of approach have been adopted and have survived intermediate appellate attention. For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if 65DAA is not relevant, assess the proposals against the best interests criterion;
f.consider and make findings about living arrangements; and
g.make orders.
The Parties’ Proposals
65.The ICL proposes that the mother have sole parental responsibility but that she consult with and inform the father. The mother agrees with the ICL’s proposals for parental responsibility. The father reserved his position about parental responsibility and no submissions were ultimately made in his case on that issue. If no order is made, that would leave the parents with the position at general law.
66.It is agreed that the child will live with the mother and will spend time with the father. It is agreed that there should be a continuation of supervision of the father’s time, at least for a period. The mother proposes that the child spend time with her father once a month and that supervision continue indefinitely, albeit through one of or a combination of mechanisms – contact centre, professional agency and Mr D. The father proposes that supervision continue at the contact centre for a few weeks, that thereafter there be day only time away from the centre moving to all of every weekend and half of the holidays from the start of 2014. He proposes a level of supervision by Mr D.
67.The ICL proposes that the father spend time with the child:
a)until 2020, on one day of each alternate weekend, for two months that will be for three hours with changeover at the contact centre; for the following two months that will be for five hours and thereafter it will be for eight hours.
b)for the first three months of those periods the time will be supervised by [Mr D] and in the event [Mr D] is not available by a professional supervision service. For the following three months the father's time shall take place in general presence of [Mr D] or a professional supervisor. Thereafter the time shall be unsupervised.
c)from March 2014 the child shall spend additional time with the father on her birthday, special events such as Christmas, Easter, father's birthday, father's day and for periods of two to three days during school holidays and on those occasions the time shall be from 9:30am until 5:30pm and not on an overnight basis. I assume that the supervision arrangements for those occasions would be the same as the weekend supervision arrangements;
d)the parties review the arrangements from 2020 with a Family Dispute Resolution practitioner and unless they otherwise agree that they progress in stages over that year to a regime that includes each alternate weekend from after school on Fridays until the commencement of school on Mondays and block periods in the school holidays.
68.The range of dispute on the key areas seems to be:
a)An order for sole parental responsibility to the mother or no order and leave the parties with joint parental responsibility;
b)Should the father’s time:
i. commence at one day a week, a fortnight or a month;
ii. be closely supervised for a few weeks, for three months or indefinitely;
iii. commence to be overnight at the start of the 2014 school year, in 2020 or never.
Section 60CC Considerations
69.As with some other provisions of Act, s 60CC was amended with effect from 7 June 2012 but only for new proceedings.[5] As the legislation related to these proceedings the section specified the following considerations:
[5] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”
Primary considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
70.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[6] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[6] McCall & Clark (2009) FLC 93-405
71.The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[7]
[7] Champness & Hanson (2009) FLC 93-407
72.It is an agreed fact that the father’s relationship with the child is important and that they should spend time together. The parents have cooperated to maintain a supervised arrangement for over four years. They clearly believe that it is important for the child to have a relationship with her father and they have been willing to make sacrifices to make that work. Without taking away from the mother’s part in those arrangements, for all that time the father and often his son, E, have put up with what the father sees as the considerable indignity and discomfort of spending time with the child at a contact centre.
73.The orders I make will need to promote a meaningful relationship between the child and the father.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
74.‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings s 4 of the Act included the following definitions:
"abuse", in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
75.In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about sexual abuse in the following terms:
Principles relevant to findings of sexual abuse
28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC 92-357, the Full Court reviewed the authorities at length and said at 79,777:
In B and B (1988) FLC 91-957, Baker and Maxwell JJ (with whom Nicholson CJ agreed on this point) considered the role of trial Judges in the Family Court when determining custody and access cases, with particular reference to those cases in which allegations of sexual abuse had been made. The appropriate law to be applied was as set out in the following passage which appears at pages 76,923-76,924:-
‘The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a)that the allegation is proved; or
(b)that the allegation is not proved; or
(c)there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision. …’ …
29.In M v M (1988) 166 CLR 69 the High Court said at 76:
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. …
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent 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. …
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. (footnotes omitted)
76.As to the standard of proof, the Evidence Act 1995 (Cth) now incorporates the effect of Briginshaw[8] in s 140.
[8] Briginshaw v Briginshaw (1938) 60 CLR 336
77.Section 140 of the Evidence Act 1995 (Cth) provides:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
78.There was no submission to the effect that the father has sexually abused the child or that there is an unacceptable risk of such abuse. I asked the mother whether she thought the father was capable of sexually abusing the child. She said that she was unsure. The mother does, however, harbour some concerns about the possibility that the father could interact with the child in a sexualised way. It is her evidence that on many occasions the child was present in a room in which the father was watching pornographic movies and or masturbating. It was the father’s evidence in cross-examination that 7 June 2009 was the only occasion that the child witnessed him masturbating. He said “it’s the only time the child run in on us…I don’t masturbate in front of the child…..the answer’s no.” The mother gave evidence that on other occasions, including 30 May 2009, the father watched pornographic videos and masturbated when the child was present. She gave evidence that on some occasions the father was aware that the child was in the room and that on other occasions he was so engrossed that he seemed oblivious to the child coming into the room.
79.I accept the evidence of the mother over that of the father on this issue. That leaves open, whether the child was at any conscious level, part of the father’s sexual experience on those occasions.
80.In this context, it is of concern that the C Centre Family Centre notes record[9] that on 4 May 2013 the father was playing with the child, pulled her pants down, revealing her bottom and later during that session a contact centre worker had to step in to tell the child to remove her hand when she put her hand down the father’s pants. The notes record that the father watched and did nothing as she began putting her hand down his pant leg. The notes record that the father did nothing to stop the child on that occasion and only said something to her after the case worker intervened.
[9] Exhibit 12
81.The mother gave evidence about the father masturbating on a pillow used by the child. As I understand his evidence, the father categorically denies that allegation. I accept the mother’s evidence on this issue. However, I am not satisfied with the required level of confidence that the father has knowingly involved the child in his activity by his use of the pillow associated with her.
82.There is no evidence that the father has physically assaulted the child although the mother gives evidence that before the supervision regime was put in place, on occasions the father shouted at the child, sometime using offensive language. Again, I accept that evidence.
83.The mother filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence raising allegations in respect of the father’s treatment both of the child and of the mother. The Notice was filed in September 2009, with her Response to the father’s application. Some of the issues were those that were addressed by the father’s conviction for breach of an AVO and other charges in October 2010. The orders sought by the mother are consistent with her allegations. She seeks ongoing supervision of the father’s time with the child and certain restraints on him.
84.The father filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence raising allegations in respect of the mother’s treatment of E. Strictly speaking E is not a child to whom these proceedings relate and therefore arguably no Notice was required[10]. The father filed the Notice in 2012, several years after the mother ceased to have close contact with E. At no time did the father seek any orders that addressed any concern for the child arising out of the allegations about the alleged treatment of E. He did not seek that the mother’s time be limited or supervised or that she be required to behave or not behave in a certain way. I take it that the purpose of the Notice was to demonise the mother.
[10] Section 67Z
85.It is the mother’s evidence that the father raped her on 5 January 2008. It is her evidence that he came to the Suburb K unit during the day, took her into a bedroom and pushed her onto a bed. She said that he took his pants off. She said: “Don’t”. The father was on top of the mother. The mother said that she tried to push him away from between her legs but he had sex with her by force. It is the mother’s evidence that the child was in another room in the unit at that time.
86.The father was asked about this in cross-examination. The father denied raping the mother although I am not confident that he was able to bring to mind the particular occasion referred to by the mother. The effect of his evidence was that that there may have been occasions when he persisted with sexual intercourse with the mother without ensuring he had her consent or despite knowing that she was disinclined or less inclined than him. The events of 5 January 2008 were not reported to the police at the time and no charges were ever laid. There is in evidence a text message from the father to the mother whereby he appears to apologise for ‘jumping’ her. The import of that message is unclear and while it could be taken to reflect an expression of remorse from the father about his conduct on that day, it also not inconsistent with an issue that the father said arose between the parties about the mother’s alarm about a lesion or skin tag she noticed on his penis. In any event, the facts do not support a finding which has the required level of confidence, that the father raped the mother.
87.However, the father conceded that he pressed for sexual intercourse with the mother when that was unwanted by her and that he asked her to engage in unorthodox sexual activity which she rejected. The father told Dr I that he knew the mother was only having sex with him to keep him happy. He was asked in cross-examination: “that is not an indication she freely had sex?” and responded: “she wasn’t really into me.”
88.The father’s conceded conduct reflects no credit on him and supports the gravamen of the mother’s case.
89.The mother was questioned about what happened after the video incident on 7 June 2009. The parties had sexual intercourse later that day. I assume that was put to the mother in support of a potential argument, consistent with the father’s case, that she acquiesced in his conduct and was generally a willing participant in their active sex life. However, the mother’s answer was consistent with her case. She said something to the effect: “it was a concerning event (masturbating in the presence of the child) and the father wanted to have sex and he had been drinking. Alcohol and sex, that was the dynamic of the relationship.” She was asked: “it was sex with consent, wasn’t it?” and answered: “I guess you could say…I wanted to calm him down, we had sex.”
90.In November 2008 the father told a doctor[11] that he had experienced problems with his behaviour over the previous one to two years. He was at times very aggressive and angry but not actually violent.
[11] Exhibit 1
91.In my view, the mother has been subjected to family violence. The father has threatened her and she had cause to be afraid of him. The father consented to an AVO for the protection of the mother and the child on 24 June 2009. On 14 October 2010 the father was found guilty of stalk/intimidate, using a carriage service to menace, harass and he pleaded guilty to breaching the AVO. He was placed on a bond for two years.
Additional considerations
(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
92.The child is six years of age. She enjoys time with her father. She has expressed fears associated with spending more time with the father. However, it is not argued that she has the maturity or level of understanding to warrant weight being given to her views.
(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);93.Dr I opined that the child has a strong and secure relationship with her mother, who is her primary attachment figure. He considers that that relationship is built on a foundation of continuous cohabitation from birth and on the mother’s committed provision for and engagement with the child. He reported that:
The child trusts and loves the mother, and feels secure in her presence, such that the child is able to express herself, and to explore the world, checking back in with her mother from time to time. The child will turn to the mother in times of fear, hurt or need, and trusts that she will be protected and cared for.
94.Dr I credited the mother with the fact that, despite her experiencing significant emotional disruption in recent years and having anxiety about the child in the father’s care, the child-mother relationship is not one of notable anxiety or hypervigilance. To his observation the child appeared quite calm and confident, able to separate from the mother without either clinginess or emotional cut-off/dissociation.
95.It is Dr I’s opinion that the child’s relationship with the father not an attachment or reliant relationship. Their relationship is a solid play-partner father-child relationship. Dr I credits both parties with the establishment of that relationship despite the father and the child living apart for many years. Dr I noted the father’s persistent and consistent commitment to contact visits and the fact that the relationship was “scaffolded by the mother in the early years” and more recently by contact centre staff. Dr I noted that the relationship was very much with “Dad and [E]”, not the father alone.
96.He identified signs of an anxious avoidance relationship between the child and the father, similar to that between the father and E. Dr I noted indications of E acting in a parentified way – taking the initiative in managing his father. Dr I reported: “The contact centre notes and my interview with the half-brother suggest that the half-brother is very much in a parentified role with the father, monitoring and managing the father’s moods, comforting and reassuring the father, suppressing his own frustrations or needs so as not to distress or disturb the father, for example with regard to the father having taken and used the half-brother’s birthday and Christmas money, and self-reliantly attending to many of his own needs such as his morning routine.” Dr I noted the beginnings of a similar process for the child with the father. He recorded that the child was vigilant to the father’s emotional and relational stance, and would become tense and quiet when called upon to meet the father’s need, for example his need to have been missed by the child or to have his surname acknowledged. He reported: “The child would feel a tension between her loyalty to her mother and the need to meet the father’s expectation, and found on each occasion a (quite creative) way to address both.”
97.The child has a good relationship with her step-brother, E. E told Dr I: “[The child] loves me, I love her and I like playing with her.” Dr I observed: “the child had an uncomplicatedly excited response to seeing the half-brother, and they engaged in joyful, creative, reciprocitous play. This was in contrast to the more cautious and complicated nature of the child’s engagement with the father.”
98.The child has not met and so has no relationship with the father’s partner Ms G, nor with her children.
99.The mother’s relationship with E is poor. On 26 June 2010 E made an unsolicited comment to a contact worker at C Centre to the effect: “What [Ms Massimino-Ellis’] done to me I can’t bear. I’m barely getting through school. And this isn’t even my fight.” E said to Dr I: “[Ms Massimino-Ellis] is a stupid, retarded devil, and I hope she goes to jail.” The parties give largely inconsistent reasons for the paucity of that relationship. The father would have it that the mother regularly and consistently rejected E and refused him access to the home. The mother would have it that whenever possible, E was a welcome and loved member of the household. There is no doubt that the father has criticised the mother in the presence of E. The C Centre notes of 17 July 2010 record, among other things: “The father continues to discuss the court and the other parent in the presence of [E]. The Father was requested not to discuss this in presence of [E] by CW(V) as [E] stated that he was stressed by the court proceedings.”
100.Dr I said that E’s statements about the mother’s dislike of him and “how she treated me” had a rather constructed quality which suggested that they were, at least in part, absorbed from the oft-repeated views of the father. I understood Dr I to say that given the personalities of the parties, the mother’s response to the father’s chaotic arrangements for E could have been and could be misinterpreted as her being heartless or unwelcoming.
101.It is not possible to make a finding about the reason for the breakdown of the relationship between E and the mother. As E and the child are siblings and enjoy a good relationship, the difficulties between the mother and E are an added strain for the child.
(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
102.There is no probative evidence that the mother has denigrated the father to the child. Occasionally the C Centre notes record the child telling the father something her mother had said. On 11 June 2011 the notes[12] record the child saying to the father “sometimes you’re a naughty daddy, mum said”. Of course that does not necessarily mean that the mother did say those things. The mother proposed and has remained compliant with an onerous program of supervised time for over four years. She has considered requests for additional or make-up time and favourably responded to many of them. As Dr I observed, in many similar circumstances one would expect the supervised contact arrangement to fail if the mother was not promoting the father to the child.
[12] Exhibit 12
103.During cross-examination the solicitor for the father challenged the mother about her proposals for future supervision. She was asked: “who will pay if a commercial supervisor is required?” and said firstly, that she would meet some but not all of the cost and secondly, that she had also proposed a supervisor who would not charge. In circumstances where the father pays less than $10 per week to assist the mother with their daughter’s support, that was perhaps not the strongest point to make on behalf of the father but it again reflects the mother’s commitment.
314.1.That contact with the father not require supervision.
314.2.For three months, the father have contact with the child for a half day, once per fortnight, with drop-off and pick-up at the contact centre.
314.3.From then, the father have contact with [the child] for a full day, once per fortnight, with drop-off and pick-up at an agreed public place.
314.4.The father not consume any alcohol for twelve hours before or during contact.
314.5.The father not engage in any sexual activity or engage with any pornographic or sexual material during the contact period.
314.6.It would be ideal if the half-brother was present for the first six months of contact, to assist [the child] (and the father) to adapt to the process.
314.7.In the context of the containment of a single day contact, I feel that the father should be able to have freedom to incorporate other people who are important to him into the contact process, for example the half-brother and the ex-partner and her family, and places which are important to him.
315.One option would be to increase contact when the child reaches an age where it is considered that she has more capacity to manage her own needs and to respond to the father's vulnerabilities, for example to extend contact to a period from Friday after school until Saturday afternoon from when the child is aged between 9 and 13 (depending on the court's appraisal of risk and capacity, my conservative appraisal would suggest an age of 13). I am hesitant to do so, as it is difficult to predict how ready the child, the father and the child-father relationship will be for this change. If they are not ready, there is a risk of disruption, distress and further court action.
316.An alternative (which I would recommend) would be to leave the amount of contact at one day per fortnight, but to make clear that from when the child reaches an age between 9 and 13 (depending on the court's appraisal of risk and capacity, I would suggest 9, because there is the “check” of maternal appraisal), contact can be extended to include overnights and/or some consecutive days during holiday times if this is the child's wish as interpreted by the mother, and if the mother is satisfied that there is no unacceptable risk.
317.If the court judges that the father has sexually abused the child or deliberately exposed the child to sexually explicit material, that the father have limited or no contact with the child until the child reaches adulthood, and any time that is allowed is supervised.
318.I would not recommend ordering the father to undergo treatment, as that treatment is unlikely to be effective in a coerced context.
319.That each party be restrained from making critical or derogatory remarks about the other in the presence or hearing of the children.
320.That the father be appropriately informed about educational and medical matters in the child's life, for example receiving copies of school reports.
175.However, at the hearing Dr I refined his recommendations. The recommendations affected were those going to the timing of the transition from supervision and the stage at which the father’s contact would be less restricted as to time (presumably a reference to overnight time).
176.During cross-examination by the advocate for the child Dr I addressed his comments at paragraph 316 of his report. He said that he would be more conservative and would think that the extension of time to overnight should occur at about 13 years of age. As to the reason for the change, Dr I noted that the C Centre notes revealed some things similar to what he had observed in his interview rooms 18 months before – the child displaying an anxious avoidant attachment style and a level of parentification. He cited the incident whereby the child was questioned by the father about how much she loved him compared to the mother. The child was put to laughing and making a joke when the father pressed her in relation to her statement that she loved the mother more. As I understand Dr I’s evidence, this was an example of the child having to manage or deflect her father’s behaviour – of her taking the parental role for him.
177.In fact there is no change of substance from paragraph 316 because of the conditions expressed in that paragraph which include “depending on the court's appraisal of risk and capacity” and “if this is the child's wish as interpreted by the mother, and if the mother is satisfied that there is no unacceptable risk”.
178.Dr I went on to identify the qualities that the child will have at 13 years of age to put the father’s vulnerabilities into context. Whereas at nine years of age, Dr I said words to the effect: “we would be putting the child into the firing line”. He said that a child at 13 is individuating and would be more capable than a younger child of accepting the parents as they are.
179.During his cross-examination on behalf of the mother Dr I was asked about the timing of changes in supervision. The mother’s counsel put to the expert that if the next step after the contact centre was a less intrusive form of supervision, such as by Mr D (if he was found suitable), then that might better meet the child’s needs, address the mother’s concerns about the transition to unsupervised time and allow father to have contact in a more natural setting. Dr I agreed and said words to the effect:
… when I stop to think about it, reading the current contact centre stuff the father is still talking about ‘one day you will come and see my cat and my house’ and the father is still pushing the stuff about ‘our life used to be happy and you need to love me just as much as mum’. The child will be insecure about that and will have the sense of ‘is mummy is lying or is daddy lying’. Although I know it was my recommendation to go straight from supervised at the centre to unsupervised and at the father’s home, I don’t think we can trust the father to manage that well – and he may say stuff like ‘I wish you were here all the time’ or ‘when you are a teenager..’. The better choice, purely in terms of father’s capacity either about the father’s ability to manage boundaries or the mother’s ability to cooperate with this occurring either about the father’s ability to manage boundaries or the mother’s ability to cooperate with this occurring transition, so on the first time she goes to the father’s house there is somebody else there and she does not get a peculiar .. we already talked before about if there was a broader concern either about the father’s ability to manage boundaries or the mother’s ability to cooperate with this occurring, then that could continue for longer than 3 – 6 months.
180.As I have recorded earlier, despite extensive cross-examination, Dr I did not resile from his ultimate recommendations and was not successfully challenged either on the factual matters on which he based his recommendations nor his professional judgment, the reasoning for which he developed and explained in his report and during his oral evidence. Therefore, care is needed before the Court would ignore or discount those recommendations.
181.My summary of the evidence of Dr I’s recommendations as at the conclusion of the trial is:
a)The child should see the father on one day each fortnight until she is 13 years of age, at which time the mother could interpret the views of the child in relation to whether to increase time to multiple days and or overnight.
b)Three to six months of further supervision would manage the transition from the contact centre to a more natural environment at the father’s home. However, if the Court was concerned either about the father’s ability to manage boundaries or the mother’s ability to cooperate with this occurring, then the period might need to be longer than six months.
182.As opposed to the impact of too much exposure to inappropriate behaviour by the father, no harm can come to the child by a cautious approach to the future. There is justification for a concern about the father’s ability to manage boundaries. He was not able to restrain himself in the formal environment of the Contact Centre. What confidence could the court have that he would do so at his own home? That will affect the mother’s capacity to cooperate with the new regime and her cooperation is very important. For those reasons I will stage the extension of day only time and the move to unsupervised time beyond the times initially proposed by the ICL and those proposed by the father.
183.In my view, given the competing concerns the best arrangement until the child turns 13 years of age would be a measured transition from the current two hour arrangement, once a week at the C Centre to an unsupervised arrangement once a fortnight for eight hours. Of the parties, the mother has the greatest concern about the transition to unsupervised time. Under the mother’s proposals there would be an immediate transition to four hour visits, albeit once a month, with changeovers at the Contact Centre but with option of the time being spent away from the centre, provided it is supervised by Mr D or a commercial supervisor. Mr D is acceptable to the father and the ICL. The mother considers that the child can cope with visits of four hours and I will so order but on the fortnightly basis recommended by Dr I. After nine months the periods will be extended to eight hours and the requirement for close supervision will give way to a requirement that the time be exercised with Mr D in the general vicinity of the child. After that arrangement has been in place for a further three months there will be no requirement for supervision.
184.What would be appropriate for the child in seven years would require a level of prediction beyond my capacity. Dr I recommended that the mother have the casting vote in relation to an extension of time once the child turns 13 years of age. I will provide that after she reached that age, there will be such further or additional time between the father and the child upon which the parties can agree in writing.
185.The mother seeks provision for a break in the regime each year, presumably so she and the child could go away. I will provide for a suspension of the regime but will also provide for the child and the father to have time in lieu of the days lost.
186.The injunctions proposed by the ICL do not appear to be controversial and I will make them.
187.The ICL proposes that the parties shall engage with an appropriate therapist to be nominated by the ICL for the purposes of assisting of the child and the parties to progress from the current arrangements for a period of two years following the date of these orders or for such further period as may be deemed appropriate by the therapist. I have not recorded any submissions against that course. I will make that order.
188.The mother’s proposal in relation to passport applications and retention of passports seems uncontroversial.
189.The mother proposes specific orders for telephone communication. The father and the ICL do not. Telephone communication has been a source of conflict between the parties. There were no submissions on this issue. I will adopt the approach of the father and the ICL and make no provision for telephone communication. Of course the parties are at liberty to reach their own agreement about that question.
190.As to the order proposed by the ICL for costs, in my view that order is appropriate. The court was greatly assisted by the ICL and there is no obvious reason why the taxpayer should foot the bill for the representation of the child. Each of the parties has paid employment albeit that the father is not in full-time work. The parties were given notice of the application prior to the conclusion of the trial[18]. I will make the order sought by the ICL.
[18] Exhibit 16 is a costs estimate from the ICL.
Conclusion
191.The parties cannot agree about orders for parental responsibility for their daughter the child, who is 6 years of age. They cannot agree about the conditions under which the father will spend time with the child.
192.The orders made will provide for the mother to have sole parental responsibility for the child but she will be required to inform and consult with the father. The child will live with her mother. Unless the parties otherwise agree the arrangements for the child to spend time with the father will transition from the current arrangements to more time, day only, once a fortnight. The requirement for supervision will change from a contact centre to an agreed supervisor, from close supervision after the first nine months and to unsupervised time after 12 months. Orders to implement that regime together with injunctions that are largely uncontroversial and some therapy for the family will be in the best interests of the child.
193.Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.
I certify that the preceding one hundred and ninety three (193) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 27 September 2013.
Associate:
Date: 27 September 2013
Key Legal Topics
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Family Law
Legal Concepts
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Costs
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Injunction
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Remedies
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Statutory Construction
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