Exelmans and Sully

FAMILY COURT OF AUSTRALIA

EXELMANS & SULLY

[2011] FamCA 3

FAMILY LAW – CHILDREN – Magellan List – Allegations of Sexual Abuse – Allegations against mother’s new partner and father and father’s brother – Child retracted all allegations – Allegations not made out – No unacceptable risk – Parents to have equal shared parental responsibility – Child to live with mother and have substantial and significant time with father – Injunctions.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CD, 61B, 61DA, 61DAC, 62G, 65DAA, 68LA, 69ZT.
Evidence Act 1995 (Cth) ss 69, 140

B & B: Family Law Reform Act (1997) FLC 92-775
Hemiro & Sinla [2008] FamCA 181
Partington & Cade (No. 2) [2009] FamCAFC 230
R & R: Children’s Wishes (2000) FLC 93-000
Re: H & Ors (1996) 1 All ER 1
Sully & Exelmans [2008] FamCA 770
Sully & Exelmans (No. 2) [2008] FamCA 1194

APPLICANT:

Ms Exelmans

RESPONDENT:

Mr Sully

INDEPENDENT CHILDREN’S LAWYER:

Ms S Macgregor

FILE NUMBER:

TVC

568

2008

DATE DELIVERED:

12 January 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

15, 16, 17, 18, 19, 23 and 25 November 2010 and 21 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gordon

SOLICITOR FOR THE APPLICANT:

Cohen Kirby & Iser

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mrs B Hooper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Macgregor Solicitors

Orders

IT IS ORDERED THAT:

Save for paragraphs 1 and 2 of the Order made on 21 December 2010, all previous orders be and are hereby discharged.
The mother and the father retain joint parental responsibility for the child T born … February 2004.
The child live with the mother.
If the father resides within a radius of 20 kilometres of the child’s school, the child spend time with the Father during school terms:-
a)from the conclusion of school on Thursday until the commencement of school on Monday each alternate week commencing on the first Thursday of each school term;
b)if the father’s work commitments are incompatible with the times specified in subparagraph 4(a), for four consecutive nights commencing after school on the father’s first full day off work and concluding not later than the commencement of school (or 9.00 a.m. if it is a non-school day) on the day that the father returns to work.
The father advise the mother and keep the mother advised promptly of his employment rosters and changes thereto.
If the father resides outside a radius of 20 kilometres of the child’s school, the child spend time with the father each alternate weekend from the conclusion of school on Friday to 6.00 p.m. on Sunday, commencing on the first Friday of the school term.
The parties do all acts and things necessary to ensure that the child attends K Primary School for the 2011 academic year.
Furthermore, the child spend time with the Father:-
a.the first half of each school term vacation to commence at the conclusion of school on the last day of term and to conclude at 5pm on the second Saturday of each school term vacation.
b.from 5pm on the Saturday before Fathers’ Day until the commencement of school the following Monday, unless the child would otherwise be in the father’s care for Fathers’ Day.
c.Any time during which the child is to reside with the father be suspended at 5pm on the Saturday prior to Mothers’ Day until the commencement of school on the Monday following Mothers’ Day.
d.To celebrate Christmas Day :-
i.from 3pm Christmas Day, 25 December 2012, until 5pm Boxing Day, 26 December 2012 and in each alternate year thereafter; and
ii.from 4pm on Christmas Eve, 24 December 2011 until 3pm on Christmas Day 25 December 2011 and each alternate year thereafter.
e.For the long school Christmas holidays:-
iIn 2011/2012 and each alternate year thereafter from 5pm on 11 January 2012 until 5pm on 27 January 2012; and
ii.In 2012/2013 and each alternate year thereafter from 5pm on Boxing Day, 26 December 2012 until 5pm on 11 January 2013.
f.For a period of 4 hours on or around:-
i.The child’s birthday being … February; and
ii.the Father’s birthday being … April.
The father be in substantial attendance during times which the child spends time with him and, if the father is not able by reason of work or otherwise to sleep in the same residence as the child each night of the period of time spent, the father provide the mother with not less than two weeks notice in writing of his inability to be at home with the child and the time to be spent proceed (or not proceed) as may be agreed between the parents or, in the absence of agreement, as may be determined by the Court.
If the child’s birthday or the Mother’s birthday falls during the Father’s time with the child then such time be suspended for a period of 4 hours that day when the child shall spend time with the Mother.
Unless otherwise agreed in writing between the parties, changeovers occur at the main gate of the school the child attends from time to time.
The parent who does not have care of the child on Wednesday have telephone communication with the child for sometime between 5pm and 7pm on Wednesday and the parent with whom the child is on Wednesday ensure that the child is available to take a call from the other parent or, if not at home, places a telephone call to the other parent.
Each parent keep the other advised in writing of their landline and mobile telephone number and any changes thereto.
The Father and the Mother keep the other informed of:
a.his/her residential address including providing the other party of not less than 28 days prior notice of any change thereto;
b.any medical issues and contact details of any medical, dental or other health professionals, or hospitals where the child has received treatment or is anticipated to receive treatment.
The mother do all acts and things necessary to ensure that the father is entitled to receive at his own expense (if any) school reports, notices and order forms for school photographs and all other material normally provided by schools to parents of students.
Each parent be entitled to attend parent/teacher interviews, school sporting functions and all functions normally attended by parents.
The Mother and the Father be restrained:
a.from causing, permitting or suffering any change of the child’s name formally or by usage;
b.from causing, permitting or suffering any discussion in the presence of the child, or in circumstances where it is likely to come to his attention, about the allegations in these proceedings or allegations of sexual abuse in general save with the prior consent of the other parent or in the context of therapeutic counselling or investigation by police or a child protection agency, which counselling or investigation shall be promptly advised by the parent who knows of same to the other parent;
c.from causing permitting or suffering the child to see or read any documents related to these proceedings.
If either parent wishes to remove the child from the State of Victoria for the purpose of a holiday:-
a.that parent provide the other with not less than 60 days prior notice in writing of such intention together with an itinerary of travel plans, accommodation and contact details; and
b.this order does not extend or augment the parenting arrangements provided for in paragraphs 4, 6, 8 and 10 of this Order.
If a parent files a parenting application or a contravention application in this Court within 16 months of this Order, that party or the respondent be at liberty to request that the application be listed before me on a preliminary basis on an early date that I am reasonably available for the purpose of directions or, if appropriate, determination.
IT IS REQUESTED that the Director of Child Dispute Services, or her nominee explain the finalisation of these proceedings to the child and the mother be and is hereby entitled to collect the child from the child minding room at the conclusion of that process.
The order requesting the appointment of an independent child’s lawyer be and is hereby discharged.
All parties forthwith return the copy court books (Exhibit “C1”) to my Court Officer and IT IS DIRECTED that after the expiration of 30 days, all but the original exhibit be destroyed.
All documents produced pursuant to subpoenae be returned to the person or institution producing same.
Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
Any party wishing to make an application for costs have 14 days after publication of reasons to do so and any party from whom costs are sought respond within a further 14 days.
That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: TVC568 OF 2008

MS EXELMANS

Applicant

And

MR SULLY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These proceedings concern the child T born in February 2004, the parent with whom the child should live most of the time and what time he should spend with the other parent. The parenting proceedings are dominated by the allegation by the father that the mother’s partner, Mr W, put his penis in the child’s mouth and “weed in [the child’s] eye”. Due to those allegations the matter is heard in the Magellan list.
At the trial the mother was legally represented by Counsel. The father represented himself.
Pursuant to an order made on 23 June 2008, Mr Andrew Hale, solicitor, was appointed as the independent children’s lawyer for T. Mr Hale ceased to act on 19 December 2008. Ms Sue Macgregor, lawyer, filed a Notice of Address for Service on 6 January 2009 as independent children’s lawyer for T within the meaning of Division 10 of Part VII of the Act. Her role is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in these proceedings in what she believes those best interests to be.[1] Ms Macgregor is not retained by T and she is not bound by any instructions from him.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documents, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
Both counsel said that they proposed to rely on subpoenaed material. Whilst there is no obligation to prepare a tender bundle or court book, it is usually the most expedient way to introduce documents into evidence so that they are available contemporaneously to a witness, the Court and the practitioners/ parties. It also provides the practitioners with notice of documents to be relied upon by other parties. In this case, the independent children’s lawyer could have coordinated the production of a court book of subpoenaed documents upon which the parties proposed to rely on and/or tender. She did not do so. Nearly a day was lost whilst all parties, including the father, looked through bundles of documents which had been produced to the Court on subpoena well prior to the start of the trial[5]. Counsel for the independent children’s lawyer said that some documents were in her brief. That is indicative of the independent children’s lawyer having seen them prior to the commencement of the trial but does not assist much in the presentation of the case.
[5] Documents from DHS were produced (x2) on 23 December 2008 and 28 September 2010; documents from VicRoads were produced (x2) on 6 April 2009 and 24 September; documents from K Primary School were produced on 21 September; documents from Victoria Police were produced (x6) on 16 and 24 December 2008, 8 January 2009, 10 March 2009, 1 April 2009 and 14 September 2010.
In order to expedite the matter, my Court officer arranged for the documents to be made available to the parties for inspection at 8.30 a.m. on the second day of the hearing and the Court copied the court books for the parties. These are matters which parties and practitioners should have attended to well before the commencement of the trial. I am critical of the practitioners for not having done so. Counsel for the mother did not take the opportunity to look at subpoenaed materials early on the second day. By the afternoon of the second day, she said that she had still not read all of the documents. The father’s conduct did not delay the trial in any respect.
The mother’s affidavit of evidence in chief was not filed until the commencement of the trial. The father did not complain and there was no objection from the independent children’s lawyer. However, faced with such non-compliance, the independent children’s lawyer should have had the matter listed ahead of the sittings for remedial action.
No party had prepared a case outline at the commencement of the trial, in spite of directions that they do so. On the second day, counsel for the independent children’s lawyer filed a case outline of sorts[6] but it was not particularly helpful. No party prepared a comprehensive or useful chronology.
[6] Exhibit “ICL1”.
The Magellan list is a judge managed, highly resourced list dedicated to the determination, as expeditiously as possible, of cases involving recent allegations of sexual abuse of children and serious physical abuse of children. Financial constraints affecting many litigants and the Court do not impact on this case. Cases in this list will be allocated an independent children’s lawyer and assistance will not be capped to litigants who are eligible for legal aid. However, litigants and particularly the profession who represent them, are expected to play their part in complying with directions, attending to the inspection of relevant documents and understanding the evidence in the case before the trial commences. The practitioners in this case did not equip themselves well and consequently it took longer to hear than should have been the case. All that said, cross examination and the final address of Counsel for the independent children’s lawyer, Mrs Hooper, were well prepared, comprehensive and of assistance to the Court. In this respect, it is obvious that T’s interests have been adequately served.

Evidence

These are proceedings to which the provisions of Division 12A of Part VII of the Act apply. Section 69ZT excludes from these proceedings various divisions and chapters of the Evidence Act 1995 which deal with general rules about giving evidence[7], cross examination[8], documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. That means that the rules of evidence in relation to the admissibility of business records do not apply to this case.
[7] With the exception of s 26, 30 and 36.
[8] With the exception of s 41 relating to improper questions.
Section 69ZT(3) provides that in exceptional circumstances and having regard to various matters such as the importance, nature and subject matter of evidence, probative weight and natural justice, I can decide that certain excluded provisions of the Evidence Act 1995 (Cth) should operate in the proceedings. I was not asked to make any such order and did not do so.
Section 69ZT(2) of the Act provides that the court can give such weight (if any) as it thinks fit to evidence which is admitted as a consequence of the non-application of provisions of the Evidence Act. I will do so.
In exercising my discretion to accord weight to documentary evidence, I am guided by principles which apply to business records under the Evidence Act even though I am not bound by those rules or statutory provisions. The philosophy underlying Section 69 of the Evidence Act is that records of things seen or heard or perceived are likely to be accurate when they are made by an independent person, in the course of a business or enterprise in which they are involved and are required to make records for the information of others and when the author has no interest in the outcome of the proceedings or could not have foreseen the proceedings at the time of making the record. Under the rules of evidence, documents brought into existence in those circumstances are admissible as evidence notwithstanding that they are not proved or the maker may not be available for the evidence to be tested. The philosophy accords with common sense.
At the trial the applicant father relied upon the following evidence:-
a)His affidavit sworn on 18 October 2010;
b)The affidavit of Ms L which was clarified as having been sworn on 14 October 2010.
At the trial the respondent mother relied upon the following evidence:-
a)Her affidavit affirmed on 12 November 2010;
b)The affidavit of Mr W affirmed on 30 April 2009.
There was additional evidence which was treated as evidence by witnesses of the court so each party could cross examine the author. The relevant documents were:-
a)Report of Department of Human Services (“DHS”) dated 13 August 2008[9] following on from the Court’s referral pursuant to s 91B;
b)Reports of Ms B, family consultant, dated 4 February 2009, 13 March 2009, 22 May 2009 and 16 April 2010. I will discuss later why there were so many family reports;
c)Report of Dr E, Consultant Psychiatrist dated 11 May 2009[10], sworn on 15 May 2009.
[9] Exhibit “C2”.
[10]Affidavit of Dr E sworn 15 May 2009.
There were numerous Exhibits and a court book or tender bundle[11] from which all parties tendered some documents. The documents included in the court book were not admitted into evidence (or read by the Court) unless specifically tendered. The following pages were tendered:-
a)By the mother: pages 413 to 415;
b)By the father: none;
c)By the ICL: pages 114 to 122, 174 to 176, 251 to 253, 269 to 281, 395 and 396.
[11] Exhibit “C6”.
The court book contained copy documents produced on subpoena including documents from DHS. The book was produced on the basis that each copy would remain in the safe custody of counsel and be returned to the court at the end of the proceedings to be destroyed. The practitioners and the father were permitted to remove the books from Court during any adjournment but were prohibited from copying the books or part of them. The fact that the court book contained 436 pages of which only 32 pages were tendered indicates to me that it was not compiled with much forethought.

Findings of fact

The relevant test for the Court’s assessment of evidence in this matter is found in s 140 of the Evidence Act. Section 140(1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities. That means that a court must be satisfied on the evidence that the occurrence of an event is more likely than not. The inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.[12]
[12] As Lord Nicholls discussed in Re: H & Ors (1996) 1 All ER 1 at 16.

In these reasons a statement of fact is a finding of fact.

Relevant law – parenting issues

These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration.
Subject to the best interests of the children being the paramount consideration, s 60B sets out the Objects and Principles of Part VII. The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the 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.
The objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the 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).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.

Determining the child’s best interests

In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The benefit of a meaningful relationship as a primary consideration

Section 60CC(2)(a) of the Act requires an evaluation of the nature and quality of the relationship between T and his parents by reference to additional considerations. It is a prospective[13] enquiry in which I evaluate the extent to which a meaningful or significant relationship with both of the child’s parents is going to be beneficial and of advantage to them into the future.
[13] McCall & Clark [2009] FamCAFC 92 (Bryant CJ, Faulks DCJ & Boland J) at [118] – [122].
By way of overview, the parties’ positions shifted dramatically throughout the proceedings.
In the first family report, the mother was described in the following terms (which I find to be accurate at the time):-
[The mother] saw no role for the father in [the child’s] life now or in the future, maintaining that “he should be castrated and sent off somewhere”.[14]
[14] Family Report released 4 February 2009 at [19].
However, in a brief opening address by her counsel, the mother sought a parenting arrangement whereby the child spend five out of every fourteen nights with the father during school terms and that school holidays be divided equally, predicated on the basis that they would all be living in G in regional Victoria. In final address, the mother’s position was more limited [15] and she made clear that she would accommodate the father’s employment commitments in the event of a change of roster, provided that he was living within 20 kilometres of the child’s school.
[15] Exhibit “M4”.
The father’s position changed continually. In all, he had six proposals. More generally the father’s initial position was that the child reside with him and spend time with the mother each alternate weekend. In the witness box he altered his proposal to a week about arrangement provided that there was no finding by the Court that the child spending time in the household of the mother and Mr W would expose the child to an unacceptable risk of sexual or other abuse. In final addresses, which followed three weeks after the evidence was concluded, the father’s position changed again. Ultimately[16], he sought sole parental responsibility, that the child reside with him and reside with the mother each alternate weekend from 9a.m. on Saturday to the commencement of school on Monday, half the school term holidays and three non consecutive weeks during the long summer school vacation. He seeks that the parent with whom the child is not staying have telephone communication three times per week. In addition, the father seeks the following injunctive orders:-
a)The mother or her servants and agents be restrained from being within 500 metres of the father’s residence;
b)The mother’s partner, Mr W, or his servants and agents be restrained from being within 500 metres of the father’s residence;
c)The mother be restrained from changing the child’s name;
d)The mother be restrained from moving more than 60 kilometres from the school at which the child attends without his prior written consent or an order of the court;
e)The mother be restrained from permitting Mr W to be within 200 metres of the child;
f)The mother be restrained from permitting Mr W to communicate with the child directly or indirectly or by any means;
g)The mother be restrained from allowing persons “affected by alcohol or drugs or drugs of abuse to be within 200 metres of [the child]”;
h)The mother be restrained from consuming alcohol or drugs or drugs of abuse when “she is to have care of [the child]”.
[16] Exhibit “F1”.
That changeovers be effected at the school gate (notwithstanding that it might not be a school day), was agreed between the parties.
At the conclusion of the evidence in November 2010 the parties agreed that the parents should share parental responsibility. The father’s position in final addresses, in December 2010, was that, if the child resides primarily with him, he should have sole parental responsibility. The father submitted that the mother is unable to act in the child’s best interests and he and the mother are unable to communicate adequately to make informed decisions about the child. If the child is to reside primarily with the mother, the father seeks joint parental responsibility. In justifying this position, he said that he hoped that the mother would be more open with him, that his ability to communicate with her would be different “if she really stopped thinking about herself and her desires”. The father suggested that “the mother receive counselling to understand that [he] is an adult with emotional needs”. His view is that he would not benefit from any counselling. The father’s position gave the mother and the independent children’s lawyer pause for thought about their proposal that the parents share parental responsibility. In particular, whether the mother ought to have sole parental responsibility for the child if the child resides primarily with her, given that the father says that the mother is a poor mother with whom he cannot communicate. However, ultimately both the mother and the independent children’s lawyer maintained that parental responsibility ought to be joint.
Neither parent contends that the other ought not to have a meaningful relationship with the child. It is implicit that each accepts that it is of benefit for the child to have a meaningful relationship with each of them. They do not agree on whether Mr W sexually abused the child and what should flow from a finding that Mr W does or does not constitute an unacceptable risk of sexual or other abuse.
Generally, the position of the independent children’s lawyer was similar to the mother’s position[17]. In final address, the independent children’s lawyer joined with the mother’s position that a shared care arrangement of something like four out of each fourteen nights was only viable if both parents reside within a 20 kilometre radius of the child’s school, which is to be K Primary School. The father’s position was that the child attend K Primary School but that his family would reside in M, another regional town, hence his submission that the appropriate restriction on distance was that neither parent’s residence be situated more than 60 kilometres from the child’s school.
[17] Exhibit “ICL6”.
All parties agree that the outcome of the proceedings ought to be explained to the child by a family consultant, preferably Ms B if she is available.

Protection from harm – as a primary consideration

The other primary consideration requires the Court to consider what, if any, arrangements are necessary to protect the child from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’ (s 4(1) – abuse (a)) or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person (s 4(1) abuse (b)).
As I discuss below, each party had alleged that the other’s care of the child would expose him to an unacceptable risk of sexual or other abuse. By the time of the final hearing, the mother did not assert that the father represented any risk of sexual abuse to the child. Her case is that she accepts that the child’s statements were falsely made. The father, however, maintained that Mr W had acted as the child originally described notwithstanding the child’s subsequent retraction. At the conclusion of the trial, counsel for the independent children’s lawyer addressed forcefully against the father’s view that the child was sexually abused whilst in the mother’s care and by Mr W. Inter alia, Ms Hooper submitted that there is no credible evidence that that any sexual abuse occurred and, as such, that the child is not at future risk in the mother’s household. Ms Hooper submitted that all the evidence shows that the father’s attitudes, his perceptions and his motives are suspect. They are, it was submitted, ill-founded, damaging to the child and rigid to the point of being obsessional.
The court must assess the future risk of exposure of the child to physical or psychological harm and formulate orders which protect him from that harm. There are numerous authorities in relation to the principles relevant to the determination of cases involving allegations of sexual abuse of a child.[18] Brown J extensively discussed the principles applicable to sexual abuse cases in the matter of Hemiro and Sinla.[19] Her Honour’s analysis and discussion is detailed and comprehensive. I agree with and adopt Brown J’s analysis.
[18] See, for example, Partington & Cade (No. 2) [2009] FamCAFC 230 (Bryant CJ, Warnick & Boland JJ) at [57] – [61].
[19] Hemiro and Sinla [2008] FamCA 181 at [20] – [51].
After careful deliberation, I agree with Ms Hooper’s submission. I also find that the father has a view that he is the only parent who is competent to care for the child and that, consciously or unconsciously, the sexual abuse allegations are the vehicle through which he seeks to achieve sole parental responsibility and day to day care of the child.
I will incorporate the facts and matters relevant to the sexual abuse issue in the relevant factual background and, from that chronological treatment, I trust it will be apparent how I arrive at my conclusion.

Treatment of the additional considerations

The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. They are included in the legislation to assist the Court make the best decision for the family whilst having regard to the child’s best interests as the paramount consideration.
Section 60CC(3)(m) of the Act requires me to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.[20]
[20] B and B: Family Law Reform Act (1997) FLC 92-755.

Credit & impression of witnesses

The father is 31 years old and employed as a miner. He comes from a large family. He is a careful and deliberate personality who took the time to prepare his case. He impressed me as being a truthful witness who is not quick to anger but, when angry or frustrated, is overbearing and, I am satisfied, that the mother or a child would be fearful of him. He showed anger once during the trial. Otherwise, he has a tendency to be petulant. His thought processes, particularly in relation to the abuse of the child, are so rigid that some of his perceptions and assumptions are unreliable. He admits to having a poor memory for detail surrounding the child’s statements indicative of sexual abuse. The concrete terms in which he thinks preclude him from self assessment, reflection or any consideration that there may be an innocent explanation for the child’s behaviour.
The father resides with Ms L. Whilst they have been together for a relatively short time, their mutual decision to settle down and build a life for Ms L’s two children and T seems sound. Both crave a solid home base for which the father is prepared to work away from home extensively at high rates of income. Ms L is tolerant of, and able to cope with, the father being absent from home for his employment.
My impression of the father is that he is vulnerable and sensitive and was deeply affected by the breakdown of his relationship with the mother. His concrete and uncomplicated way of thinking makes him well suited to the rigors of his employment but not so good at making a sensible or informed assessment of the child’s behaviours and needs.
With candour, Ms L describes the father as tending towards stubborn. The father had not confided much information about this case to Ms L and, somewhat unusually, she did not require him to do so. In my assessment, this is because the father is perceptive enough to know that Ms L could challenge some of the beliefs that he is not prepared to reconsider, such as the sexual abuse of the child by the mother’s partner. It suits the father to accept Ms L’s support which is both generous and unquestioning without putting at risk certain assumptions and conclusions about the mother’s care of the child in which he has invested heavily.
The mother was nearly 32 years old. She is not employed outside the home. She presents as a reasonably strong personality although that strength would not have been a match for the father’s intractability during their relationship. She was a compliant but slightly defensive witness. She has a capacity for self assessment and had no apparent difficulty in making concessions about having coped poorly in the past with her use of illicit drugs and the loneliness she experienced when the father was away which saw her unable to cope with anything more than rudimentary housework and child rearing.
The mother has lived through significant ordeals. Her mother died when she was a teenager and she fell into an addiction to illicit drugs. In 2003 and in the process of rehabilitating herself from drug use, she agreed for her then young child of her previous relationship, N, to reside with his father. N was approximately five years old. The mother stopped using illicit drugs but N remained in the primary care of his father. She saw N regularly each alternate weekend, during school holidays and on special occasions. Tragically, N was killed in a motor vehicle accident during these proceedings[21].
[21] In late 2008 N was killed in a motor vehicle accident.
The mother presented as a truthful witness.
Ms L is the father’s partner. She is a nurse who completed her training in 2007 and currently works for the local Health Services. She is the mother of Z, aged 11 years, and R, aged seven years. Z’s father resides in central Victoria. R’s father resides in central Victoria. She describes the care of her son and daughter as “shared care, fairly flexible and amicable”. In fact, the children are with their fathers most weekends and the fathers are frequent and welcome visitors in her home for meals, babysitting (of each other’s children), socialising and general friendship. The fathers enjoy a happy relationship with each other which pre-dates her relationship with either of them. They all went to Secondary School together. She gave examples of how supportive her children’s fathers have been to her and it is clear that they have a caring, trusting, respectful and mutually supportive relationship. She gave her evidence frankly but authentically.
Ms L confirmed that her household can move to G within a few weeks and prior to the start of the New Year. She has discussed this with the fathers of her children and they have no difficulty with her moving and trust her to choose a school for the children. She admitted that details had not been settled but concluded that “whatever happens we will make it work”. She anticipated that she will transport her son, R, to his paternal grandfather each week so that the two can continue the tradition of attending Little Athletics on Saturday.
She impressed me as a self reliant, hard working, socially skilled woman who has constructed a well organised and solid family environment into which she has now invited the father and T. She readily conceded that certain conduct of the father, described to her in the course of cross examination, demonstrated rigidity on his part. She referred to him as stubborn and in some ways “very limited”. She was open in the manner with which she gave evidence about having been sexually abused by her step father as a child. She did not volunteer the topic and was clearly uncomfortable, but she displayed no resentment. There was no hint of her having invested in the allegations against Mr W or that she encourages the father’s ideas in this regard. In fact, she accepts that the father has been unwilling to discuss the allegations with her and she heard many relevant details for the first time in the witness box. She says that she supports him without knowing “the finer details”.
She gave evidence, about three or four months ago, of having discovered her son R and T with their pants off under bed covers. The manner in which she handled the incident, vis a vis her own son was entirely appropriate, including telling R’s father and accepting his advice that the behaviour was “normal”. She did not intrude on how the father explained the inappropriateness of the behaviour to T other than “to encourage a non-punitive approach”.
I accept that she regards T as a “gentle, loving affectionate young man, a bit of a gentleman”, as opposed to a purely rough and tumble young boy.

Ms L impressed me as having a capacity to make realistic assessments which far exceed the capacity of the father in that regard. She is a great asset to the father and a positive aspect of T’s time in the father’s household. The mother reflected that she gained confidence in the father as a result of having had the opportunity to observe and hear from Ms L in the witness box. That accords with my impression. However, I am not at all confident that the father will readily access Ms L’s skills or wisdom because, to do so may challenge the precepts in which he has invested very heavily, including the role which he has assumed of having to protect T from sexual abuse by the mother’s partner whilst in the mother’s care.
Mr W is the mother’s partner. He has an acquired brain injury as a result of a car accident in 1999. He is in receipt of a disability pension but has worked as a labourer. He described his functioning in the following terms[22]:-
Sometimes memory is a problem. Not to extremes but it – you know, it can be a problem when I’ve got to remember certain times or dates or just little aspects like that but that’s pretty much it. I mean, that’s what it’s been like since the accident. When I first had the accident it was a little bit worse than it is now and, like, it was a bit of a problem. Every day I’d be forgetting all these different things but it has just evened out now so – and I’ve also learned to deal with it, find – I found ways to deal with it myself so ‑ ‑ ‑ Just basically forcing myself to remember things and different ways of remembering things and times and dates and stuff. […] I wouldn’t really say that there’s anything I really can’t do.[…] I think the reading – it takes me a lot – I don’t know if this is because of the accident or not; who knows. But, I mean, I do read pretty slow but, I mean, I’ve never been a real fast reader. My maths skills are not very good but, I mean, I can generally do my maths but it’s – like, big sums and subtracting and all that kind of things I do find hard sometimes. […] I’ve never really been good with maths.
[22] Transcript in Confidence 25 November 2010 at 11.
His manner was somewhat hesitant in the witness box but I was unable to discern whether that is attributable to his condition or because the mother had not told him much about the proceedings and he struggled to follow the detail in questioning.
Mr W’s criminal convictions were the subject of cross examination. His first sentence was in 1998 for being unlawfully on premises for which he was fined $250 without a conviction. The violence related convictions started after his accident and involved incidents when Mr W was under the influence of alcohol. He describes himself as being “pretty rabbled up, kind of thing, things would get to me.” He last smoked marijuana in 2006. His criminal record does him no credit but does not disclose anything current.
He said that he will abide any orders of the court in relation to him not being permitted to consume alcohol but believes that no order should be made in that respect. His evidence was “I think that I should be able to make up my own mind, like every other adult does”. Under cross examination on behalf of the independent children’s lawyer, he said that he would not object to any restriction being placed upon the mother (or himself) about his consumption of alcohol but[23]:–
I don’t think it’s very fair because I can’t even have a – you know, a beer on my birthday or someone else’s birthday celebration if [T’s] around, which was the case last – last time I had my birthday, I wasn’t allowed to have a drink. And I mean, I’m 31; I should be able to have an alcoholic beverage if I see the need on an occasion like that. But if there was an order made I would agree to it, yes.
[23] Transcript in Confidence 25 November 2010 at 21.
His drink of choice is premixed Jim Beam and cola, but he also drinks premixed Jack Daniels and cola on occasions. He occasionally drinks beer. His evidence was that “I don’t like the taste of straight bourbon whisky” and he drinks no other spirits. His consumption did not seem excessive. Mr W conceded that his violence related convictions were alcohol related but I am inclined to accept that he is able to monitor his alcohol consumption now to the point that the child’s interests do not require a prohibition against Mr W consuming any alcohol prior to or during the child being in his presence.
Under cross examination on behalf of the independent children’s lawyer, Mr W described an incident in which the child saw some pornographic images. He said that it was late at night, the mother was still at work and the child was supposed to be in bed. He could not recall whether the child was staying overnight. Mr W described the incident as follows[24]:-
[24] Transcript in Confidence 25 November 2010 at 24 – 27.
I was sitting at the computer looking at some adult entertainment on the computer and I can’t remember if I heard him, I just felt like I should turn around and there was [the child] standing in the lounge room behind me. I said “Oh,” you know, I kind of got up like that kind of thing to try and hide the screen from where he was standing, clicked it off, and I said, “What are you doing up?” You know? And he said – oh, I don’t know what he said. I can’t even remember now, but I said, “All right, come on, let’s go back to bed,” so I took him back to bed. I don’t know if he went to the toilet or anything like that but he went back to bed and that was pretty much it.
[…]Then I went back out into the lounge room and started playing PlayStation 3 that I was previously on.
[…]‑‑‑I can’t remember when I told her. It might have – it was either that night or the next day.
[…]‑‑‑But there were some nights that I would be in bed when [the mother] got home, so I mean, I can’t remember if I was awake or in bed.
[…]‑‑‑I said, “I’ve got to tell you something,” and she said “Mm,” and I said what had happened and yes, that’s it. […] I can’t remember her words, but it wasn’t – it wasn’t on. […] She wasn’t pleased. […] I said sorry to her, you know, like, “Oh,” you know, “Sorry,” you know, kind of thing. I mean, what more can I do but apologise and that, yes. […] I don’t know what he seen. […] A man and a woman having sex. […] There was [oral sex] in it, but I mean, I can’t sit here and picture what was on the screen at that moment, so I can’t really say what was on the screen. […] Oh, he wouldn’t have been there for long. Not very long at all. […] He wouldn’t have been there for five minutes, no. [He did not ask me any questions] It’s like he didn’t even see it. […] I just said, “Come on,” you know, “back to bed.” I went back to bed and that was it. […] He’s never said anything to me about it. […]
MRS HOOPER: Right. Did – was that pornography removed from the computer?
MR [W]: It wasn’t pornography that was actually on the computer, it was on the internet.
HER HONOUR: Do you pay for it?
MR [W]: No.
HER HONOUR: What do you do in order to get it?
MR [W]: You just go on the internet and it’s there. It’s everywhere. […]
MS HOOPER: So have you continued to watch adult sites on the internet?
MR [W]: No.
MS HOOPER: Why not?
MR [W]: Because it’s [the mother’s] computer and she really doesn’t like it.
MS HOOPER: Was she very angry about the fact that [the child] may have seen inappropriate material on the ‑ ‑ ‑?
MR [W]: She wasn’t very pleased. She basically – I mean, let me know that it wasn’t right and it’s not – just don’t do it again.
MS HOOPER: Yes, and have you done it again?
MR [W]: I have seen material on the computer since then. Like I was about to say, you don’t actually have to search for it to see it on the internet. I mean, a lot of things on the internet have ads and things that pop up. I mean, if you haven’t got a family filter which stops children from seeing stuff like that on your computer, things like that come up all the time.
MS HOOPER: And have you got that on your computer?
MR [W]: A family filter?
MS HOOPER: Yes?
MR [W]: No. I – it’s not my computer, it’s [the mother’s] computer.
MS HOOPER: Have you discussed putting it on the computer, so the kids can’t see it?
MR [W]: I haven’t discussed it with [the mother], no.
MS HOOPER: Why not?
MR [W]: I’ve never even thought about it.
MS HOOPER: And it’s pretty important, isn’t it, particularly for [T], I would think?
MR [W]: Yes.
Mr W’s evidence about the child having observed pornographic images of a woman performing oral sex on a man was reasonably consistent with the mother’s evidence in that regard. The major differences were that the mother gave evidence that she arrived home in the early hours of the morning to find Mr W concerned and apologetic about the child having observed oral sex images whereas Mr W is not sure when he told the mother what had occurred or what particular images were on the screen.
My impression is that the mother has not rehearsed relevant events with Mr W. The points of departure, whilst significant, are excusable having regard to the event having occurred in 2007 and that Mr W did not appreciate the significance of it until much later and after the mother’s realisation.
I am satisfied that an event such as is described by the mother and Mr W did occur in the second half of 2007.
The family consultant, Ms B, met with and variously assessed the family or aspects of it on four occasions over an extended period commencing in January 2009 and concluding in February 2010. Ms B was cross examined by all parties. She is a witness upon whose evidence I place weight and, unless the contrary is stated, I accept.

Relevant background

The mother and father met in the first half of 2003 and commenced to residing together, in the Geelong area, in December 2003. The mother was recovering from her addiction to amphetamines, a substance which she used in various ways including intravenously. The father was employed as a public servant for 200 days a year. The father reduced his days of employment with the public service and, by 2005, ceased that employment all together. He was otherwise employed in the mining industry.
The mother has a child from a previous relationship, N, born in March 1988. The mother had been N’s primary carer until early 2003 when he went to live with his father, whilst she recovered from her use of illicit drugs. Once the mother recovered, N remained in the care of his father but saw the mother regularly by agreement. The father alleged that the mother saw less of N than she could have. I find that the mother saw N regularly and frequently, mostly on alternate weekends. Significantly, it was a parenting arrangement that was cooperative and did not require the intervention by the Court.
The father formed an appropriate and positive relationship with N.
T was born in February 2004. The mother’s pregnancy with T was confirmed when the couple were staying at the father’s shared residence and the parties attended upon his doctor. At the same time, the mother was diagnosed with Hepatitis C. The mother deposed in her affidavit affirmed on 12 November 2010 that the diagnosis of her condition was “prior to my relationship with the applicant/father” but in oral evidence she clarified that it occurred at the time of her pregnancy being confirmed. At trial the father maintained he believed that the mother knew of her Hepatitis C status before this time and, inferentially, had failed to notify him of the risk to himself and the risk to any child which may be conceived of their relationship. Documents from relevant medical centres were produced on subpoena during the trial and inspected. The mother was cross examined on the issue. I accept that she did not find out that she was positive for Hepatitis C until the day her pregnancy was confirmed.
T’s birth was not registered until recently and then on the father’s application. The father is critical of the mother for not having lodged the paper work immediately after the child’s birth. The mother’s evidence was that she handed the completed paper work to the father to lodge, as she was still in hospital. He admitted that he did not lodge it. The father’s criticism is not well founded.
In August 2004, when the child was about six months old, the family moved from Geelong to Melbourne. In February 2005, when the child was about 1 year old, the family moved to a rental property in the peninsula area. The father was employed on a four weeks on and two weeks off roster which necessitated him being away from home for four weeks out of every six weeks. The father alleges that in December 2005 he found the mother playing World of Warcraft, an on-line, multiplayer computer game in which each player assumes a character avatar and battles other players within the three dimensional world. The father alleges that the mother was doing little else but playing the game. The mother admitted to being low in mood and to doing the bare minimum of housework which resulted in the home being messy, but not unclean. The father changed employment to a five day a week position at that time and returned home each night.
The parents separated in September 2006 whilst they were living in the peninsula area. The mother and the child, then aged two and a half years, moved to the Ballarat area to be near her family. She initially lived in a rented premises, but that dwelling was structurally unsound and in April 2006 she moved to the Maryborough area. In the meantime, the father moved from Melbourne to take up employment for three months in Darwin and then in August 2006 he returned to Melbourne, lived with his mother in the south eastern suburbs and found work locally. The father deposes to seeing the child regularly.
In late April or early May 2006 the mother moved her household, including the child, to the Maryborough area. The mother met and commenced a relationship with Mr W initially via a relationship website and then through a face to face meeting at her home. They spent a lot of time together but, they say, did not cohabit. The father was critical of the mother for having arranged for her first face to face meeting with Mr W to be at her home in a remote area and in the presence of T and N. The mother said that she was confident that Mr W was suitable to invite to her home, with her children, because she recognised his mother as a local business proprietor and had observed his home life extensively by webcam. She was also aware that her landlord was working in a nearby barn and could be accessed if need be. The admission in relation to the landlord standing by indicates that she was not without concern herself. I share the father’s criticism of the mother in relation to this incident. It is understandable that she acted as she did but it was imprudent and reckless and, whilst I mention it here in these reasons, I take that behaviour into account pursuant to s60CC(3)(f).
In April 2007 the mother moved her household to G where she resided in a rental property.
The father alleges that in November 2007 his sister told him that she observed T masturbating in the bath “in an adult fashion” and that the child tried to kiss her with an open mouth and with his tongue. The child was three and a half years old at the time and the father had just commenced employment interstate on a two weeks on and one week off roster. The father said that the masturbating and ‘French kissing’ were of concern to him and his sister but that he did not mention it to the mother. The father was given an opportunity to call his sister to give evidence in the proceeding but did not do so. I assume that her evidence would not have assisted his case.
Counsel for the independent children’s lawyer submitted that the bath and kissing incident is not persuasive and arose “in fairly doubtful circumstances”. I agree with that submission insofar as I am satisfied that the father gave evidence of his sister’s impressions and statements. I also agree with Ms Hooper’s submission that these incidents sowed seeds of suspicion in the father’s mind. I find it curious that the father did not raise his concerns with the mother. There was no suggestion that the father believed that the child’s behaviour emanated from his household so, presumably, he would have wanted the mother to know of it and be aware or vigilant as to what could have excited the child to act in this way. The fact that the father did not tell the mother indicates that the father was more concerned with collecting indicators of sexual abuse or negligence on the mother’s part, to use against the mother subsequently, than he was concerned with protecting the child.
The father’s evidence is that on the weekend of 28 February he took the child to the peninsula where they stayed in one bedroom unit accommodation with his brother J. The child had just turned four years of age. The father said that the child hesitated with speech for most of the day which led him to conclude that the child wanted to tell him something but was stopping himself. The father put the child to bed and spoke to the child about how “bad” it is to keep secrets, any secrets at all, whereupon the child said that Mr W “put his willy in my mouth … like the princesses taste willy on the puter”. The father asked his brother to come in so that the child could say it to him. The father’s brother entered the bedroom. The father asked the child to repeat himself but the child did not repeat the statement. The father did not call his brother as a witness. There was no suggestion from the court that he should do so. In closing submissions, counsel for the independent children’s lawyer submitted that the father’s brother would have been a helpful witness as to the demeanour of the child and the reactions of the father immediately after the alleged statement. I do not think that much turns on it.
On 29 February 2008, the father returned the child to the mother’s household and travelled interstate to work for two weeks. The father did not mention anything to the mother about the child’s statement. The father’s evidence as that he believed that the mother’s relationship with Mr W was finished. I find that, at the commencement of the weekend, the mother and father had conversed and that it was reasonable of the father to think that Mr W was no longer a member of the mother’s household[25]. I do not accept the mother’s evidence to the contrary. However, I find it incongruous that the father did not mention the child’s statements to the mother.
[25] The evidence was that Mr W spent frequent and consecutive nights at the mother’s home but that neither considered that they were “living together”. It is likely that their understanding of co-habitation was largely framed in terms of their status as recipients of social security payments, the eligibility for which is affected by cohabitation with another adult.
First and foremost, if the father truly believed that the child’s statement was accurate, he should have told the mother so that they could discuss treating the child and keep an eye out for signs that he was traumatised. I do not accept the father’s evidence that he did not do so because he believed that the mother would protect Mr W in preference to the child. He thought that Mr W was no longer in a relationship with the mother. Otherwise, he would have been strongly motivated to tell the mother in order to discourage any re-association with Mr W, particularly in the context of the father being regularly interstate.
Second, the father knew that N frequently spent time at the mother’s home and would have been exposed to Mr W. I accept that the father had an appropriately affectionate regard for N which I am unable to reconcile with the father failing to disclose to the mother that N could have been at risk in the company of, and/ or have been abused by, Mr W. The father gave evidence that he had told N’s father who said that there was nothing to worry about. Nonetheless, I find the father’s concealment of information from the mother to be inconsistent with genuine alarm and a genuine imperative to protect T.

The father’s evidence was that some days later, about 9 March 2008, he was still at work but became aware, through the child referring casually to him, that Mr W is in the mother’s home. The father says that he requested that his working shift be cut short and he returned home early. In any event, the father did not see the child any earlier than his next scheduled visit during which time he would have been aware that the child was in the company of Mr W. Still the father said nothing to the mother.
On the next spend time visit, the father collected the child from the mother and took him back to the peninsula. The father contacted Victoria Police, Children’s Protection Investigation Unit, on Monday 16 March 2008 and arranged for the police to interview the child the following day. On Tuesday 17 March 2008, the father took the child from the peninsula to G, which involved a car journey of four hours one way.
The child saw Senior Constable A who recorded[26] the father as working in mines in Western Australia and of “no address” and the child as being resident in G. The notes read:-
Father stated that his son has started exhibiting sexualised behaviour, and that he feels the current partner of his ex wife is responsible. […]
[The father] attended station with his son to determine if an offence had been committed. Nil disclosure made by [the child] at that time. Father not content with [Senior Constable A’s] belief that ACC. [Senior Constable A] recommended that father and [the child] attend station on another date to speak with another member regarding this matter for second opinion.
Linguistic skills on [the child] very low. Basic communication possible but ponderous and problematic. Appointment made for Thursday 20/03.
[26] Court Book at 395.
There is a note of the father calling the station on 20 March and saying that he could not attend. The second interview was re-scheduled for 21 March.
On 21 March 2008, the child and the father made another four hour journey from the peninsula to G where the child was interviewed by Sgt I who created the following Community Police Squad narrative[27]:-
[The father] and [the child] attended and spoke with Sgt [I]. Initial contact involved drawing to assist in communicating with [the child]. [The child] presented as comfortable in his surroundings and did not appear intimidated by either Sgt [I] or environment.
Nil disclosure.
Sgt [I] suggested to father that CASA have specialists in dealing with matters involving children whom are able to spend a substantial, consistent time with clients to build up the communication dialog.
At this stage no further police action required regarding this matter.
[27] Court Book at 396.
The father takes issue with the accuracy of some parts of the police notes extracted above.
In cross examination by counsel for the independent children’s lawyer it was put to the father that he had not mentioned any precise words by the child to Senior Constable A on 17 March 2008 because, in fact, none had been uttered. The father responded that he was fairly sure that he told Senior Constable A that the child had said that Mr W “put his willy in my mouth”. The father speculated that the Senior Constable just forgot to write it down accurately. In closing addresses, the father said that the Court had stopped him calling Senior Constable A to give evidence and be cross examined on his notes. That is simply not accurate.
Furthermore, the father alleges that either Senior Constable A or Sergeant I “suggested taking [the child] away.”[28] However, at page 10 of the DHS report dated 13 August 2008, it is recorded that Sergeant I “informed that he did not say this and that he told the father that he was unable to take any further action (from police perspective) and that what he did was up to him”.
[28] Exhibit “C2”, DHS Report dated 13 August 2008 at 6.
The police records are documents which, if Division 12A Part VII did not apply to this case (which it does), would be business records. The DHS notes are similar. Pursuant to Division 12A, the records are evidence. The police documents were produced pursuant to subpoenae in this proceeding, incorporated into the tender bundle of documents and then made exhibits. The DHS report was sent direct to the court as part of the Magellan protocol. The evidence of the father conflicts with the contents of official records and the makers of the official records were not called. I am required to give such weight to the evidence as I consider appropriate. The official records were produced by independent persons, in the course of their duty as a police officer or a protective worker. All were expected, if not required, to record events and perceptions accurately. Significantly, none of the police officers nor the DHS worker has an interest in the outcome of these proceedings (or any other proceedings relevant to this case). In the circumstances, I prefer the accuracy of their notes over the father’s evidence. In particular, I do not accept that the police may have forgotten to write down this significant detail.
Counsel for the independent children’s lawyer submitted that it would have been “extraordinary” for the father to have told either police officer that the child had said “[Mr W] put his willy in my mouth” and that the police omitted to make a note of it. I agree. The allegation of the child, if true, also leaves little scope for a criminal offence not having been committed so the reference to the father seeking advice as to whether a crime had been committed is similarly hard to reconcile with the father’s version.
The father returned the child to the mother at the conclusion of the time without mentioning the original and, by that time, only statement made by the child indicative of sexual abuse. Still the father was in no doubt that T and N were being exposed to Mr W. The father returned to work interstate. Counsel for the independent children’s lawyer describes this period as the father “plotting” to remove the child permanently from the mother’s care. That is accurate.
The father obtained the mother’s agreement to a trip of one to two weeks to Northern Queensland saying that he was required back in Melbourne for a job interview of 26 April 2008 and would return the child at that time. The child was four years and two months old. The mother’s agreement was indicative of her accepting a meaningful relationship between father and son. After a week, the father told the mother by telephone that the job interview (which had never existed) had fallen through and asked if the child could stay longer. The uncontradicted evidence of the mother was that, on a weekly basis, the father presented further excuses to delay the child’s return and that, with increasing reluctance and concern, she agreed. She described the child as becoming more and more reserved and disinterested in talking to her on the telephone.
The father alleges that, whilst in Queensland, the child elaborated with a statement that “[Mr W] weed in my eye and it hurt”. The father tried to get the Queensland police and protective services to interview the child as a victim of sexual abuse but they refused to do so.
The notes of Victoria Police[29] record that the father called on 14 May 2008 asking for the child’s file to be sent to Queensland Police because they had requested it. He said that the child had “elaborated on his allegations”. The note records that the father was advised that, “it is not legal to hand over the case entry without a Freedom of Information application etc. Suggested he get the Qld police to contact this office.” There was no evidence that either action was taken. The father’s evidence is that he tried to get protective services to interview the child but they refused.
[29] Exhibit “C1”, Court Book at 396.
Unbeknownst to the mother, the father tried to file parenting order proceedings on 27 May 2008 but could not do so because he did not have a birth certificate for the child.
By the end of May 2008 she told the father that the child must be returned to her forthwith and, if the father did not do so, she would commence proceedings for a recovery order. The father agreed to return the child, by train travel, on 6 June 2009. However, he called from the station saying that his backpack was still at his accommodation and the child and he could not board the train without tickets and money. At trial, the father admitted that when he left for Northern Queensland he had no intention of returning the child to the mother. He was cross examined as to whether his backpack was genuinely misplaced or was a further ruse for delay. The father claimed that it was the child who had been responsible for the backpack, hence it was the child, not he, who forgot to bring the backpack to the train station. Given the child’s age, it is a ridiculous proposition that does the father no credit. It leads me to conclude that this was just another strategy and one in which the father is prepared to implicate the child rather than accept responsibility himself.
On 11 June 2008 the mother filed parenting proceedings, in which she sought a recovery order, in the Victorian Magistrates’ Court. She obtained an order which was executed, in Townsville, at about mid-night on 12 June 2008. The fact that the police were required to transport the father and child to the local police station and formally hand the child over to the mother in the middle of the night, rather than the father having relinquishing the child to the police earlier in the evening on production of the court order, satisfies me that the father cares little about the consequences of his conduct to the child’s comfort and security. The mother could ill afford to travel to Northern Queensland on short notice and had to borrow funds to meet airfares.
On 13 June 2008, the father instituted parenting proceedings in Townsville. The operation of the parenting orders were otherwise stayed and the mother was required to remain in Townsville for a further hearing before Montieth J. This was the first occasion on which the mother had been advised of the sexual abuse allegations. The child had been out of her care for the preceding two months. The delay in Townsville required the mother to cancel her bookings which increased her expenses.
Pending the hearing and her return to G, the mother allowed the father to spend time with the child, in her presence. They picnicked on a river bank and the mother agreed that the child could possibly spend some overnight time with the father but no arrangements were made. The mother said that she felt somewhat vulnerable and pressured to agree to an overnight stay. When the mother obtained an earlier flight at very short notice, as Montieth J had ordered she could take the child, she and the child packed and left without notice to the father. Nonetheless, the father made it to the airport to say good bye to the child and was permitted by the mother to do so. The father is critical of the mother’s behaviour. I am not.
The mother’s evidence was that she had stayed with relatives in Townsville and gave careful consideration to whether the allegations were true. She did not dismiss them out of hand. Her comment that she discussed with her relatives that she, “did not want to be one of those mothers who can’t believe that a boyfriend could abuse her child”, has a ring of authenticity about it. The mother agreed to a condition that Mr W not communicate with the child.
The father did not see the child again until February 2009.
The mother’s evidence was that, once the child returned to G, he started to exhibit disturbed and sexualised behaviour, such as trying to put his finger in the bottom of the pet dog. N made statements to the effect that the father and his Uncle J had sexually abused him. There were similarities between his allegations against them and his allegation against Mr W. The matter was investigated by Department of Human Services and reported to the police. A good treatment of the protective services assessment appears in a First Visit Case Note dated 15 July 2008[30]. It contains a transcript of an interview and observation of the child conducted on Wednesday 16 July 2008 by Community Policing Squad, an extract of which reads as follows[31]:
[30] Exhibit “C1”, Court Book at 269 – 282.
[31] Court Book at 274 – 275.
Worker: Can you tell me about your Dad?
Child: Dad said yucky words to me.
Worker: Can you tell me what they were?
Child: Became quiet.
Worker: This is a safe place. You can talk to us about it.
Child: … put his willy in my mouth and he weed in my eye.
Worker: Who did that?
Child: [Mr W] did… It was yuck.
Worker: Is that the truth. Did that really happen?
Child: Weeing in my eye is a lie.
Worker: Did that really happen?
Child: No.
Worker: Do you know the difference between a truth and a lie?
Child: Shrugged shoulders
Worker: My jumper is pink. Is that the truth or a trick (worker was not wearing pink).
Child: Trick.
Worker: Is it the truth that mum’s wearing…
Child: Child interrupts and says, Black (Mum was wearing black).
Worker: Is that the truth or trick?
Child: Truth.
Worker: Is mum wearing blue top and truth?
Child: Truth.
Worker: When you say that [Mr W] weed in your eye. Is that a truth or a trick?
Child: Trick.
Worker: What made you say that? Where have you seen it?
Child: Dad – Dad says yucky work – wee in my eye. [J] puts is (sic) finger in my butt.
Worker: Who puts a finger in your butt?
Child: No. Willy.
Child: That’s a trick.
Worker: Have you seen Dad lately?
Child: Yes.
Worker: Where does he live?
Child: He lives at his place with [J]
Worker: Is [J] an animal or a person?
Child: He’s a lie. He was in a truck and he ran away and was squished.
Worker: Squished by a truck?
Child: No squished by a shark.
Worker: You’ve got a wonderful imagination.
Mother: [J] is his uncle.
Child: My Dad is [name] and he grows really tall.
Worker: Is he tall like Mum?
Child: No. Tall like a t-rex.
Worker: Does he scare you like a t-rex?
Child: No.
Worker: Do you know what safe means?
Child: Yeah.
Worker: Can you tell me a time that you felt safe.
Child: When I am sick I just go to the corner.
Child became distracted and bumping on the door.
Worker: Before we were talking about [J] and you said that he put his Willy in your bum. Is that what you said?
Child: Yeah, It’s gross.
Worker: Can you tell me more about that?
Child: That’s gross. Don’t say that.
Child became increasingly distracted and began reading out the letters on the workers book. [Child] read out words.
The child is distracted and addled and his statements are too confusing to be reliable. Viewed as a whole, however, I am satisfied that the child felt under considerable pressure to converse with the worker and used confusion and sometimes gibberish as a defence against having to do so.
The Townsville proceedings were transferred to Melbourne and came before Brown J in the Magellan duty list on 22 August 2008. The father did not appear and final orders were made in his absence which, inter alia, removed any restriction on Mr W coming into contact with, or residing with, the child. That decision appears under the case neutral citation [2008] FamCA 770.
On 10 September 2008 the father filed an application to set aside Brown J’s order and asking that all proceedings be reinstated. It was accepted that the father’s lawyer had failed to secure appropriate representation for the father at the earlier hearing. I reinstated the application and set aside the order on 17 October 2008. It was not opposed. My reasons for decision, including declining the father’s application to reinstate all restrictions about Mr W, appear under the case neutral citation [2008] FamCA 1194. I incorporate those reasons into these reasons. Pursuant to my order the father’s time was to take place at a contact centre and a family report was to be released by 15 December 2008. No time took place.
In late 2008 N died tragically. The mother says that she could not cope with life in G where there was so much to remind her of N. My impression is that, in grief and anger, she took the child and went to Melbourne in January 2009. She did so without telling the father and with disregard for the effect on the ability of the child to spend time with the father. The mother and Mr W commenced cohabitation.
On 16 January 2009 the parties and the child were to be seen by the family consultant for assessment for the aforementioned family report. The father attended but the mother did not. Mr W’s mother telephoned Child Dispute Services and said that the mother had exhausted herself moving house and could not attend. A further appointment was made for the mother and the child to attend on 21 January 2009. Ms B describes the father as “an anxious and restless man of 28 years who was clearly worried about the day’s proceedings. He had apparently been travelling for 48 hours to reach the Court in time for the interview, having travelled from north of Townsville in Queensland; As the afternoon progressed he became increasingly disappointed when it became apparent that [the mother] and [the child] were not going to attend.”[32] Ms B recorded the following in relation to the father:-
14.      [The father] alleged that in April 2008, during a period when he had [the child] in his care for 3 months, [the child] disclosed to him that Mr [W] had “put his willy in my mouth, and weed in his eye”. He also claimed that his sister had told him that [the child] had tried “French kiss her”, and was masturbating in an adult fashion, when she was bathing him. [The father] alleged that [the child] told him that Mr [W] had put his willy in my mouth and weed in my eye. He stated that he was extremely concerned about the situation, and tried to alert the [G] Police on many occasions, but to no avail. He recalled that [the child] was not given the opportunity to talk about the disclosures. [The father] stated that he felt “panic stricken” and as a last resort made the decision not to send him back to his mother’s care. He felt that [the child’s] mother was “all over the place” at the time, and even when the Judge ruled that [the child] had to be returned to her care following the issue of a Recovery Order, she had informed him that “he could have [the child] for a few more days”.
15.       He felt completely mystified when he became aware D.H.S., [regional] made the decision that [the child] was not at risk from Mr [W], but instead at risk from him, because it had been reported that he was sexually abused as a child, and that this somehow meant that [the child] was at risk in his care. He stated that D.H.S. had specifically asked if he had been sexually abused as a child and he had categorically stated to them that neither he nor any member of his family he had ever been sexually abused. He stated that no attempt was made by D.H.S. to explain their interpretation of the situation to him, which he believed was in some ways perfectly understandable because they were so obviously mistaken. [The father] added that [the child] is not well cared for in his mother’s care and is frequently in dirty clothes.
16.      [The father] appeared shocked when the Consultant discussed with him [the mother’s] allegation that he had sexually abused [the child], and he appeared to be completely unaware of the claim.
[32] Family Report of Ms B dated 4 February 2009 at [10].
The family consultant also interviewed the paternal aunt, C Sully (who was not a witness in this proceeding).
On 21 January 2009 the mother and the child attended an interview with the family consultant. Ms B describes the mother as follows[33]:-
17.      […] a resolute, but communicative woman in her 20’s. She came to the Court with her partner, Mr [W], and Mr [W] was interviewed briefly in the afternoon. Before being halted by the Consultant, [the mother] embarked on a vitriolic attack on the Judge who presided over the last Court proceedings. She considered that the Judge had not made herself familiar with her situation, and was not an appropriate person “to be on the bench”. Moreover, [the mother] had very little confidence in Court process, and if the Court “tried to make [the child] see his father against his will she would go to the media”. [The mother] stated that the last time [the child] spent any time with his father was on the 17 June in 2008. She had not fulfilled, nor did she have any intention of fulfilling the condition on the last Court Order, which stipulated that [the child] commence supervised contact with his father [Contact Centre]. The mother has refused to comply with the requirements to gain entry into this service.
18.      She stated that she was not prepared to “force” [the child] into conversing with his father on the mobile phone, because [the child] had made it clear to her that he did not want to speak to his father either by telephone or in person. According to [the mother], in the past [the father] telephoned anything up to 30 times a day. She claimed that this persistent telephoning upset [the child] to the point whereby he “became a wreck”, and on one occasion he had “grabbed a chair and screamed, and “when I asked [the child] will I put the phone away? he screamed yes put it away”. Since that incident she had not encouraged telephone contact between [the child] and his father.
19.      [The mother] refused to provide the name of [the child’s] school when she became aware that the Consultant was going to release it in the family report. She stated that she intended to continue to leave the decision to [the child] whether or not he wanted to spend time with his father, and, when challenged about the likelihood of [the child’s] making this request given the current circumstances, she conceded “it was very unlikely”. [The mother] saw no role for the father in [the child’s] life now or in the future, maintaining that “he should be castrated and sent off somewhere”.[34]
[33] Family Report of Ms B dated 4 February 2009.
[34] Family Report of Ms B dated 4 February 2009.

Ms B opines that T is a child who consistently wants to please adults. I accept that is so. I also accept that T is a happy and healthy little boy.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[70]

[70] s 60CC(3)(i) Family Law Act 1975 (Cth)

I must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil his/her responsibilities as a parent. This factor includes the extent to which each parent has taken or failed to take the opportunity to spend time[71] with and communicate with[72] the child and to participate about major long term issues concerning the child[73]. It includes the extent to which the parent has fulfilled or failed to fulfil his/her obligations to support the child financially[74] or otherwise maintain the child. It also includes the extent to which each parent has facilitated, failed to facilitate or frustrated the other parent’s participation in the long term welfare[75] and the other parent communicating with the children[76] or spending time with the children.[77].
[71] s 60CC(4)(a)(ii) Family Law Act 1975 (Cth).
[72] s 60CC(4)(a)(iii) Family Law Act 1975 (Cth).
[73] s 60CC(4)(a)(i) Family Law Act 1975 (Cth).
[74] s 60CC(4)(c) Family Law Act 1975 (Cth).
[75] s 60CC(4)(b)(i) Family Law Act 1975 (Cth).
[76] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
[77] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
I am required to, and do, have particular regard to events which have happened, and circumstances which have existed, since the parties separated.[78]
[78] s 60CC(4A) Family Law Act 1975 (Cth).
I am satisfied that, prior to the father over holding the child in Queensland in April to June 2008, the mother was cooperative and promoting of a meaningful relationship between the child and the father. She felt as if she was required to fit in with the father’s working commitments. However, and most relevantly for this case, she did so. The trip in April 2008 was to be for seven to ten days. The father managed to extract extension after extension from the mother, on the basis of falsehoods and by concealing from her the fact that he had departed Victoria with an intention never to return the child. Ultimately, and after due warnings and significant forbearance, the mother brought recovery proceedings. This episode does not suggest to me that the mother was not promoting a reasonable relationship between the father and child prior to June 2008.
The independent children’s lawyer submitted that the mother’s shortcomings, vis a vis any lack of facilitation of the father’s participation in the child’s life, followed the over holding and N’s death and that she has now realised her mistakes (including the allegations of sexual abuse against the father) and changed her ways. On the other hand, the independent children’s lawyer submitted, the father’s actions in accepting without question that abuse has definitely occurred, are deliberate and persistent. I find that the evidence supports those submissions and I accept them. Moreover, I find that the father made the allegations in the first place and persists with them until now largely because they meet his need to remove Mr W from, and to marginalise the mother in, the child’s life.
Dr E described this aspect of the father’s behaviour as follows[79]:-
[The father] gave varying accounts as to the circumstances in which he took [the child] with him and appeared to shift ground in that respect. He impresses as a man who continued to harbour an unresolved sense of connection with [the mother] and impressed as acting out a number of those issues on [the child’s] behalf. There was a sense that he was projecting his own needs onto [the child] in that respect. Throughout the interview he portrayed himself as someone who was on the side of right and much of the relationship occurring between himself and [the child] was based on his need to protect his son and to help him “heal”. [The father] impressed as a man who has a number of unresolved issues emanating from his earlier emotional life, leading him to over-identify as his son’s protector. However, he does not present with a formal psychiatric condition and will not be regarded as someone whose personality functioning rises to the level of a disorder.
[79] Report dated 11 May 2009 at [14], annexed to affidavit of Dr E sworn 15 May 2009.
I find that it does not matter whether the father’s motivations are conscious or unconscious. Either way, the father’s behaviour has been to subrogate the child’s needs to his own needs, which is the opposite of responsible and child focussed parenting.
The father did not see the child from mid-June 2008, when the child returned to Melbourne with the mother, until March 2009 as arranged by Ms B, family consultant. The father blames the mother for that lack of participation. He ignores the fact that he could have followed the child to Victoria and he could have pursued his rights through a solicitor and the Court. This gap in the child seeing the father reflects much more negatively on the father than on the mother vis a vis my assessment of how they discharge their parental responsibilities.
The father is in arrears of child support. Under the assessment which was current at the time of the trial[80], the father was required to pay $658 per month. The arrears accumulated as a consequence of non-payment as well as a recalculation which increased the liability and amounted to about $6,500. The father says that he had made arrangements with the Child Support Agency to pay some amount each fortnight. In closing submissions, he said that for the preceding fortnight it was $95 over and above his liability but he had not earlier challenged the mother’s evidence that it was $5 per week. He criticises the mother for purchasing tobacco for consumption in roll your own cigarettes. He did not contradict the mother’s evidence that he had said to her that she should get her “new boyfriend” to pay or that the only payments which she has received in the last 12 months have been deducted from his income and paid via the Child Support Agency[81].
[80] Dated 4 October 2010, effective from 11 March 2010 to 31 December 2010, Exhibit “ICL2”.
[81] Exhibit “ICL2”, Payee Payment History.
The father admits that his income earning capacity is about $90,000 per annum plus superannuation[82]. He says that there have been periods of unemployment whilst he elected to study and that he has found these proceedings “a massive financial strain on me and my family”[83]. The father’s position is that he felt that he had to move to Townsville in order to protect the child from Mr W and to continue to live with his brother who had transferred from Darwin to Townsville. The father’s decision to move to Townsville necessitated him leaving his well paid employment. None of these circumstances lessen the father’s responsibility to financially support his child.
[82] Transcript in Confidence 21 December 2010 at 69, lines 33 – 34.
[83] Transcript in Confidence 21 December 2010 at 79, line 3.
The father said that he will not open correspondence sent to him from the Agency and that he is unwilling to speak to the Agency by telephone “because they abuse me”. I doubt very much that the Agency is abusive to the father over the telephone. However, even if it was, his primary responsibility is to provide adequate support for his son which it is apparent he has failed to do.
I assess the father as having fulfilled his responsibilities as a parent much less satisfactorily than the mother. I am also unimpressed that, in doing so, he tries to blame the mother for his shortcomings as a parent, such as saying that she is responsible for him not seeing the child from June 2008 to March 2009 when it was clearly not the case.

Any family violence involving the children or any member of the children’s family and family violence orders[84]

[84] ss 60CC(3)(j) and (k) Family Law Act (Cth).

As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.
The only current intervention order is that made on the mother’s application on 17 March 2009. It will expire on 18 March 2011and prohibits the father from contacting or approaching the mother and the child save for various circumstances including in accordance with parenting arrangements pursuant to orders of the Court.
The father sought various orders against the mother and Mr W including that they be restrained from being within 500 metres of the father’s residence and that the mother not permit or suffer Mr W being within 200 metres of the child, or communicate in anyway with the child, or allow anyone “affected by alcohol or drugs or drugs of abuse” to be within 200 metres of the child, or the mother consuming “alcohol or drugs or drugs of abuse” when she is caring for the child.
There is simply no evidence to support any prohibition against the mother or Mr W from approaching the father’s home. Furthermore, Mr W is not a party to the proceedings nor has he been accorded procedural fairness. The father sought to justify his application by saying that he had spoken to the fathers of Ms L’s children and that is what they wanted.
For reasons I have expressed above, I do not propose to make any order regulating consumption of alcohol by Mr W or by the mother for that matter.
There is no evidence of current or recent drug use by the mother or by Mr W and consumption of illicit drugs is nonetheless illegal.
Similarly, as I do not find that Mr W poses any unacceptable risk to the child, I will make no injunctions to the effect that the mother be prohibited from permitting them to come into contact.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[85]

[85] s 60CC(3)(l) Family Law Act (Cth).

Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation.
Parents are at liberty to modify court orders by subsequently entering into parenting plans, which have the effect of varying existing orders.
All parties agree that I should make final orders and I will do so.

Any other fact or circumstance the Court thinks relevant[86]

[86] s 60CC(3)(m) Family Law Act (Cth).

It is important that the child not be subjected to further questioning or even encouraged to discuss his previous comments. It was agreed by all parties that there be an injunction in that regard.

Parental responsibility

Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[87] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[88] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[87] s 61B Family Law Act 1975 (Cth).
[88] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[89] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[90] and to ‘make a genuine effort to come to a joint decision about that issue’.[91] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[89] s 65DAC(2) Family Law Act 1975 (Cth).
[90] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[91] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[92] or abuse of the child or another child who is a member of the parent’s family;[93]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[94] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[95]
[92] s 61DA(2)(b) Family Law Act 1975 (Cth).
[93] s 61DA(2)(a) Family Law Act 1975 (Cth).
[94] s 61DA(3) Family Law Act 1975 (Cth).
[95] s 61DA(4) Family Law Act 1975 (Cth).
The first of the two situations do not apply.
The father sought sole parental responsibility on the basis that the child resides with him. He sought shared parental responsibility if the child is to reside predominantly with the mother (which he will). He justifies both positions on the basis that the mother is a poor parent. The father submitted that[96] “ I have had three years to think about this constantly over and over and the reason is that it is beneficial for [the child] to have me as sole responsibility for his education and his learning. This is my main goal to see him through a private education where he can go to a grammar school. And his mother is very much opposed to him going to any sort of private school. And I would like to send him to a good school where he can become as much as he wants to become. Furthermore to that, he is in his – in the vein of his health and his safety, I would like to have the responsibility for his health and wellbeing to make sure he is fed properly, clothed properly, all those things …”
[96] Transcript in Confidence 21 December 2010 at 16, lines 36 – 45.
There was also the following interchange between the father and the court[97]:-
[97] Transcript in Confidence 21 December 2010 at 17, lines 30 – 45.
[THE FATHER]:   […] In conversations I have had with the mother I have told her that I would like [the child] to go to a private school and she has very sternly opposed.
HER HONOUR:   Okay. Well, mothers who don’t get child support are often very sternly opposed to private school because you don’t actually get - you know, a father in your position might want to send the child to a private school but might forget to give the mother any money to feed him. Have you considered that?
[THE FATHER]:   I have considered that, your Honour.
HER HONOUR:   Okay. So you would be wanting to pay for a grammar school, would you?
[THE FATHER]:   Yes, your Honour.
HER HONOUR:   But not to the exclusion of paying proper child support.
[THE FATHER]:   No, your Honour.
HER HONOUR:   In your affidavit you say that you are up‑to‑date in child support. Well, that’s clearly wrong, isn’t it?
[THE FATHER]:   It is incorrect, your Honour.
HER HONOUR: Yes. So why did you say it?
[THE FATHER]:   Because at the time I believed I was up‑to‑date.
HER HONOUR:   And you believed it because you hadn’t opened the correspondence from the Child Support Agency?
[THE FATHER]:   That’s right, your Honour.
HER HONOUR:   So, tell me about why the mother has to be excluded from any of the decisions in relation to [the child’s] education or his health, his religion, those sorts of things, because I understand why you want to do it, what I need to know is why I should exclude the mother.
[THE FATHER]: Because I don’t believe that the mother acts in the child’s best interests, your Honour.
HER HONOUR:   So what do you think your ability to talk to her would be about things to do with [the child]?
[THE FATHER]:   I would say that we have the ability to communicate if and when it suits the mother, and that she is quite rigid in what she wants and the outcomes that she wants to achieve.
HER HONOUR:   Well, do you say that you can communicate or you can’t communicate?
[THE FATHER]:   Communication as in me picking up the telephone and calling her or her likewise, we can communicate. But in as far as making informed decisions I don’t believe that we can communicate to that level.
HER HONOUR:   Having heard all of the evidence I can’t recall anything that – any incident in which you and the mother did actually try to make an informed and considered decision about anything in the best interests of [the child] together. You have both done things to or with [the child] or about [the child] that you each say are in his best interests, but there hasn’t been anything that I can think of when you have actually done anything together. All right. So you say that you – that’s because you don’t have that level of communication or ability to discuss things with her?
[THE FATHER]:   That’s right, your Honour….”
I have given serious consideration to ordering that the mother have sole parental responsibility because she is significantly the more child focussed than the father and the father says that he cannot communicate with her for the purpose of making decisions about the child’s future and wellbeing. However, ultimately, the mother and the independent children’s lawyer submitted that there should be shared parental responsibility.
I predict that there may be difficulties with shared parental responsibility but I am prepared to make an order for joint parental responsibility. To do otherwise, would be to deprive the child of an opportunity to have both parents contribute to decisions about his life before his parents have had an opportunity to try to work co-operatively within the parenting arrangements which I will now impose upon them.

Consideration of equal time or substantial and significant time with both parents

Sub-section 65DAA(1) of the Act provides that, in making a parenting order for a child’s parents to have equal shared parental responsibility for the child, I must consider the following:
a)whether the child spending equal time with each of the parents would be in the best interests of the child;[98] and
b)whether the child spending equal time with each of the parents is reasonably practicable;[99] and
c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.[100]
[98] s 65DAA(1)(a) Family Law Act 1975 (Cth).
[99] s 65DAA(1)(b) Family Law Act 1975 (Cth).
[100] s 65DAA(1)(c) Family Law Act 1975 (Cth).
In making such an order, I must regard the best interests of the child as the paramount consideration.[101] Further, in determining what is ‘reasonably practicable’, I am to take into account the factors listed in s 65DAA(5) of the Act, which include the following:-
a)how far apart the parents live from each other;[102] and
b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;[103] and
c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind[104] (including the behaviour of a parent, such as their willingness and ability to facilitate and encourage a close, meaningful relationship between the child and the other parent and their attitude to the child and to the responsibilities of parenthood);[105] and
d)the impact that an arrangement of that kind would have on the child;[106] and
e)such other matters as the court considers relevant.[107]
[101] s 65DAA(1) Note 1 and s 60CA Family Law Act 1975 (Cth).
[102] s 65DAA(5)(a) Family Law Act 1975 (Cth).
[103] s 65DAA(5)(b) Family Law Act 1975 (Cth).
[104] s 65DAA(5)(c) Family Law Act 1975 (Cth).
[105] s 65DAA(5) Note 1 Family Law Act 1975 (Cth).
[106] s 65DAA(5)(d) Family Law Act 1975 (Cth).
[107] s 65DAA(5)(e) Family Law Act 1975 (Cth).

The family consultant expressed her opinion that a shared parenting arrangement was not suitable for the child. Under cross examination by counsel for the independent children’s lawyer, she explained the view that many of the prerequisites were missing. These included a good relationship between the parents and the partners of the other parent and similar parenting styles. She also agreed that a significant change in living arrangements, whereby he is separated for longer periods from his mother and sister, may lead to the child feeling insecure. I accept that evidence.
I find that the parents lack the capacity to implement a shared parenting arrangement to the child’s benefit. They cannot communicate sufficiently well and the implications of failure are very poor for the child. There was a recent occasion when the father was due to spend time with the child but was working interstate. He misled the mother into thinking that he was present whereas the child spent the weekend with his Uncle J, whom the mother dislikes. The reasons that the mother gave for her animosity to J Sully cannot be evaluated as part of this hearing. However, I feel comfortable to I infer that the father knew the mother would not abide J Sully caring for the child. It transpired that the child had only his school uniform to wear all weekend and was returned to the mother in a dishevelled condition. The mother’s evidence, that there was inadequate provision made to care for the child, was not challenged by the father at the trial. The mother was entitled to feel deceived by the father and to be mistrusting of him. It is not in the child’s best interests for anything of this nature to occur into the future. If the father is not, by virtue of his employment or any other reason, going to be living (and sleeping) in the same house as the child during time spent, the mother ought to be told. It may be that she will not send the child or she will agree to schedule make up time with the father or that she will decline to send the child if J Sully is going to be the primary carer but will allow the child to go if Ms L is to be his carer. Come what may, the mother is entitled to assume that, if the child goes to spend time with the father, that the father will be present for most of the time and that the child will not be placed with a third party unbeknownst to her.
I find that there is insufficient mutual trust and respect between the child’s parents upon which to build a shared parenting arrangement.
I conclude that the child should reside primarily in the mother’s care and spend regular and frequent time with the father. All of the parties sought orders in terms of the child living with each parent as opposed to living with one parent and spending time with the other. I have preferred the concepts of the child living with the mother and spending time with the father. It is clear that, if the father lives proximate to the child’s school, the child will be a real and effective member of the father’s household. However, if the father chooses to live more than 20 kilometres away, the child’s involvement in the household and it is, in my view, artificial to say that the child is living with the father for two out of each fourteen days and, even moreso, for four hours on special occasions like birthdays. At this stage, the court does not know how the father will arrange his household. The significant reforms to the legislation in 2006 were concerned with substance and not form. We have moved beyond semantics and language as is indicated by the requirement that I consider significant and substantial time by reference to the content and purpose of the time and not by how it is labelled.
Sub-section 65DAA(2) of the Act provides that where parenting orders allow parents to have equal shared parental responsibility but not equal time with the child, I must consider whether it would be in the child’s best interests for the child to spend substantial and significant time with each parent.[108] I must also consider whether this is reasonably practicable,[109] with reference to the factors outlined in s 65DAA(5),[110] and if so, consider making an order giving effect to this.[111] In making this determination, the child’s best interests are the paramount consideration.[112]
[108] s 65DAA(2)(c) Family Law Act 1975 (Cth).
[109] s 65DAA(2)(d) Family Law Act 1975 (Cth).
[110] s 65DAA(2) Note 2 Family Law Act 1975 (Cth).
[111] s 65DAA(2)(e) Family Law Act 1975 (Cth).
[112] s 65DAA(2) Note 1 and s 60CA Family Law Act 1975 (Cth).
Sub-section 65DAA(3) of the Act states that the child will be taken to spend substantial and significant time with a parent only if that time includes weekdays, weekends, holidays and non-holidays[113] and involvement of the parent in aspects of the child’s daily routine[114] and occasions of significance to both parent and child.[115] The legislation notes, however, that these factors are not intended to limit the matters to which the Court may consider in determining whether the time spent with a child is substantial and significant.[116]
[113] s 65DAA(3)(a) Family Law Act 1975 (Cth).
[114] s 65DAA(3)(b)(i) Family Law Act 1975 (Cth).
[115] s 65DAA(3)(b)(ii) and s 65DAA(3)(c) Family Law Act 1975 (Cth).
[116] s 65DAA(4) Family Law Act 1975 (Cth).
As I have discussed above, in the context of s60CC(3)(e), a parenting regime whereby the child spends four out of fourteen nights with the father is not feasible unless the father’s household is within easy reach, or 20 kilometres, of the child’s school. Other issues such as the father’s work commitments appear to be surmountable as between the parents but inordinate distance between the father’s home and the child’s school, in my view, is not.

Conclusion

I am satisfied that the orders which I have pronounced today are in T’s best interests.

I certify that the preceding two hundred and forty four (244) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date: 13 January 2011

[2011] FamCA 3

12 January 2011

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Family Law

Civil Procedure

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