FEATHERSTONE & ADEY
[2018] FCCA 754
•29 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FEATHERSTONE & ADEY | [2018] FCCA 754 |
| Catchwords: FAMILY LAW – Allegations of sexual abuse by Mother against Father – principles outlined regarding “unacceptable risk” – allegations clearly not established – extremely anxious Mother who strongly believes the Father to be a sexual predator – Father has dyslexia and sometimes obviously lacking in “social cues” – need for Father to re-establish his relationship with young child and recognises some supervision necessary at the outset thereby showing some insight – Mother seeks permanent supervision Order for the Father to spend time with the child but did not address authority that militates against the utility or efficacy of such an Order – graduated re-introduction of Father’s time with the child – limitations of the Family Report. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC(2)(b) & (2A), 60CC(3)(a) – (m), 61DA, 65DAA |
| Cases cited: Collu & Rinaldo [2010] FamCAFC 53 Donaghey v Donaghey (2012) 45 Fam LR 183 Fox v Percy (2003) 214 CLR 118 Johnson & Page (2007) FLC ¶93-344 M v M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 Fam LR 518 |
| Applicant: | MR FEATHERSTONE |
| Respondent: | MS ADEY |
| File Number: | CAC 636 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 24 – 25 May 2017 |
| Date of Last Submission: | 12 July 2017 |
| Delivered at: | Canberra |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
| Solicitors for the Independent Children's Lawyer: | Jeanine Lloyd & Associates |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The Mother have sole parental responsibility for the child, [X] (born: (omitted) 2012), subject to Order 2 of these Orders.
The Mother is to inform the Father of all matters and decisions in relation to the major, long-term issues regarding the care of the child, with such issues being outlined in section 4 of the Family Law Act 1975 (Cth).
For the purposes of Order 2 of these Orders, the Court suggests such communication be in writing between the parties, with no comment on the decisions by the Father.
Subject to the following Orders in respect of holidays and special days, that the child live with the Mother and spend time and communicate with the Father as follows:
(a)Until 1st July 2018 at Marymead for two hours on every fortnight.
(b)As from the 1st July 2018 at the Civic Library for two hours every fortnight unsupervised and agreed in writing or failing agreement on Saturdays from 1:30pm to 3:30pm.
(c)As from the 1st September 2018 for 6 hours every fortnight and failing agreement from 11:30am to 5:30pm on Saturdays.
(d)As from 1st November 2018 for 8 hours every fortnight and failing agreement from 9:30am to 5:30pm on Saturdays.
(e)As from the 1st February 2019 from after school on Friday until 5:30pm on Saturday every second weekend.
(f)As from 1st March 2019 from afterschool on Friday until 5:30pm on Sunday every second weekend.
(g)As from 1st April 2019 from after school on Friday until before school on Monday every second weekend.
(h)Commencing on 1st July 2019, that during the School Holiday period, Order 2 is suspended and the child spend half of the Term 1, 2, and 3 School Holidays as agreed between the parties, but failing agreement, the first half with the Mother, and second half with the father.
The child spend time with the parents in the Christmas Summer School Holidays as follows:
(a)In odd years commencing 2019 for the first week with the Father and for the second week with the Mother, and then for 2 weeks with the Father and for two weeks with the Mother.
(b)In even years commencing 2020 for the first week with the Mother and for the second week with the Father, and then for 2 weeks with the Mother and for two weeks with the Father.
(c)Such other times as agreed in writing.
As from 2019, in the event that the Easter long weekend falls outside the School Holidays, the child shall spend time with the parents from after school on Easter Thursday until before school on the following Tuesday on a rotating basis with the Father having the first of these occasions and the Mother having the second, and alternating thereafter.
Notwithstanding the above, the child shall spend time with their Mother on Mother’s Day from 9:00am until 4:00pm and with the Father on Father’s Day from 9:00am until 4:00pm, unless otherwise agreed in writing.
Unless otherwise agreed in writing, if changeovers cannot be effected at school or Marymead, they shall occur at (omitted)’s.
That the child spend time with the parent who is not caring for him on his birthday as follows:
(a)If the birthday fall on a school day, on a school day for 2 and a half hours from after school until 5:30pm;
(b)If the birthday falls on a non-school day. for 4 hours from 9:00am until 1:00pm, unless otherwise agreed in writing.
The child shall communicate with the parent who is not otherwise caring for him via phone, skype or facetime as follows:
(a)On Mondays, and Thursdays between 5:00pm and 6:00pm, with the Father to call the Mother’s telephone in order to facilitate this;
(b)At all reasonable times as requested by the child, with the parent caring for the child to call the parent who is not caring for the child.
If the child is not with the other parent on his or her birthday the child will communicate via phone, facetime or skype with the other party between 9:30am and 10:00am on a non-school day and between 7:30am and 8:30pm on a school day, with the parent caring for the child to call the parent who is not caring for the child, unless there is an emergency.
For the purposes of the above orders, each parent shall:
(a)Ensure that he or she facilitates the communication,
(b)return any missed calls within a reasonable period,
(c)afford the child privacy and not record any communication between the child and the other parent or any family member who is communicating with the child.
Subject to Orders 10 and 11 above in relation to telephone time, and unless in the event of an emergency or urgency the parents shall communicate with each other through emails, or communication book or talkingparents.com website. However, in the event of an emergency or if there is an urgent need to inform the other parent of a matter which it is in the child’s best interests for the other parent to receive this information as soon as possible, then each parent is permitted to telephone or text the other.
Neither party shall denigrate or belittle the other party or the other party’s family members in the presence or hearing of the child or allow any other person to do so.
Nothing in these orders authorises the Mother or the Father to send any rude, harassing, offensive or abusive communication to the other party any communications between the parents shall be in a concise, polite and businesslike manner which deal solely with issues pertaining to the child’s health, education, welfare or development.
Unless in the event of an emergency the Mother and the Father shall use their best endeavours to provide full information in writing about any medical, orthodontic, dental, physiotherapy, optometric, specialist, psychological, psychiatric and or counselling appointments for the child, including times, dates, services to be provided and cost.
Failing agreement about any services to be obtained, the parents shall consult the child’s treating general practitioners, and follow his or her recommendations as to what services are desirable or necessary for the child’s health, welfare or development.
Each parent shall do all things necessary to promptly notify the other parent in advance of any appointment of all relevant information concerning the child’s health providers including the full name, address and contact details of the health provider and the reasons for he or she wishing to make the appointment.
Each parent is hereby authorised at this or her expense to obtain all information and documents, records or notices relating to the child’s health, education, welfare or development from any provider or treating professional and the mother shall forthwith provide the father with written notice of the name and address of the child’s school and General Practitioner and keep this information updated and current.
Each parent is hereby authorised to attend any school functions, extracurricular sports events or activities to which the parents are normally invited to attend.
Each parent shall ensure that he or she does not harass, threaten, intimidate or insult the other at any event, function, appointment or occasion at which the other is in attendance relating to the child’s health, education, welfare or development and shall use his or her best endeavours to ensure that any family member also in attendance is able to behave towards the other parent or their family members in a polite and business-like manner.
Each parent shall ensure that he or she takes all necessary steps to prevent the child from being subject to hearing or seeing any conflict involving their parents and/or family members.
Each parent shall ensure that he or she provides to the other current and up to date telephone, email and communication details.
Each parent shall use his or her best endeavours to reach agreement in writing in respect of the child’s sporting and extracurricular activities from time to time as required.
In the event of a dispute that cannot be resolved through mediation or counselling within 28 days concerning extracurricular activities then each parent shall be permitted to nominate one sporting or extracurricular activity per year for the child, and the following provisions shall apply as to their nominated activity or sport:
(a)subject to the below the parents will each use their best endeavours to ensure that the child attends on time to their games, functions and training sessions if applicable.
(b)If during a parent’s care of the child a parent is unable or unwilling to facilitate the child’s participation or attendance at his games, functions and training sessions then he or she shall provide reasonable and prompt notice to the other parent who is permitted to take reasonable steps to ensure the child travels to and from and participates in his games, sessions or functions.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Featherstone & Adey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 636 of 2015
| MR FEATHERSTONE |
Applicant
And
| MS ADEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting dispute involves the self-represented Applicant Father (who was more than ably assisted by a close friend, Ms D during and after the trial), and a very anxious Mother, Ms Adey, in relation to the “time-with” arrangements for the Father with their son, 5 year old [X] (born (omitted) 2012).[1]
[1] The parties’ dispute in relation to property, together with a relatively small child support contest, was resolved pursuant to Orders made by consent, dated 25th May 2017.
Among a number of matters raised by the parties is the “safety” of the child with the Father. It is for this reason that the Mother effectively seeks that the Father spend only supervised time with the child and for this to occur ad infinitum. Indeed, the way it was put in opening by the Mother’s experienced lawyer was that there was a not infrequent “crossing of boundaries” by the Father in his behaviour with the child, and with the Mother’s older children.[2] These children reported on such matters to the Family Consultant.
[2] See Transcript (24th May 2017) pp.4-6. Hereafter “T” followed by the page number.
It may be of some relevance to matters generally that Mr Featherstone suffers from dyslexia (a fact not relevantly challenged during the trial or otherwise), which may account for him apparently lacking, at times, certain sensitivities about which the Mother (over time) became increasingly concerned or at least specially attuned.[3] At this stage, I do not say this in any formal exculpatory way. However, a number of the matters raised by the Mother regarding the Father’s conduct with [X] and equally so with her older children (her teenage daughter [A] in particular), were explained, in my view, not unreasonably, by the Father as clear and basic misunderstandings of both his actions and his intentions. All such things are canvassed in some detail in the course of these reasons.
[3] Early in his cross examination the Father noted his dyslexia, which manifested itself, among other things, in him having documents read to him because (he said) he could not read and comprehend them at the same time. T 21. The Father also said early in his oral evidence that in 2015 he was suffering from “major depression.” T 27. Formally, there was no evidence to support such a claim from a medical or psychiatric perspective. I took him to be referring generally to his poor mental state as a “layman’s description.”
I should also note that because of the Father’s dyslexia he was assisted by family members and notably during the trial by his long-time friend, Ms D (recorded earlier), in the reading and preparation of documents and in questioning witnesses, notably the Family Consultant, Ms S. While there was the occasional reservation expressed by the solicitor/advocate for the Mother, no formal objection was taken to this allowance to the Father in all of the circumstances.[4]
[4] See, for example, the exchanges at T 43, 45 and 54.
It was noted too by the Family Consultant in her Report, perhaps a tad curiously in the light of her oral evidence, that the Father had “not learned self-discipline.”[5] She said that she had formed this “impression” of the Father in the course of the interview process but otherwise did not elaborate.[6] Subject to what is said later in these reasons, this might well be taken to be another expression of the Father lacking some social cues and attention, and or that things that he says or does are not appreciated by him for their possible (adverse) impact or effect on others, who may (or likely will) mis-interpret or misunderstand the Father’s actions and or intentions.
[5] Family Report, par.5.3.
[6] T 56
I share the Independent Children’s Lawyer’s (“the ICL”) view that there is no relevant risk of the kind (explained in detail later in these reasons) alleged by the Mother. Indeed, in her opening comments, the very experienced ICL referred specifically to the Father providing an explanation for all of his actions and intentions, or as she put it, he provided a “different scenario.”[7]
[7] T 8
What is also a matter of particular relevance, as noted by the ICL in her opening, is that, for example, when the Mother thought that [X] had been sexually abused by the Father, she took the child to a doctor. The doctor considered there to be no evidence of abuse. But the Mother did not believe the medical practitioner.
In turn, as noted by the ICL, the Mother attributes sinister motives to the Father in virtually all relevant instances, which (among other factors) leads the Mother (a) not to accept the doctor’s opinion that there was no sexual abuse of the child by the Father, and (b) perhaps likely not to accept any ruling or determination by the Court, should there be a finding that no such abuse (or risk) is demonstrated on the evidence. The ICL also noted that the Family Consultant (Ms S) recorded the Mother having a “conviction” that [X] is at risk in spending anything other than supervised time with the Father.[8] She said that she was not aware if the Mother had (or would) undertake any counselling to assist her with her anxiety (and “convictions”) regarding the Father.
[8] T 8
I should also note that as at the date of the trial, the Father had not spent any time with the child for a period of six months, which accounted (in part) for the Father proposing that there be a period of “re-introduction” time with [X] whereby his time commenced as “supervised”.[9]
[9] Among other places, see the broader discussion at T 91 – 92 where there was a “suggestion” by the Court, which was basically agreed with by the Father, for supervision to commence at a “contact centre”, then to progress to supervision by a family or other agreed person, before moving to unsupervised time.
For all of the Father’s relative lack of sophistication, and perhaps general, somewhat gruff or at least “rough around the edges” manner, I do not see him as posing any relevant threat to the child. That said, the Father appropriately recognised the need for a measured approach to [X] spending time with him, beginning with more supervision (which had been occurring in any event in the past) before transitioning to unsupervised time. In general terms, with amendment only as to relevant dates, the Orders proposed by the ICL are, in my view, in the best interests of the child. They provide for appropriate safe-guards/protections, to the degree necessary.
Finally, for completeness, I might note that at the outset of the trial, apart from some general discussion about detail, there was basic agreement regarding the essential or fundamental issues in dispute that required the Court’s determination: (a) risk to the child spending [unsupervised] time with the Father, (b) the “time with” arrangements as between the child and the Father, (c) the duration of supervision (assuming that such is ordered), and (d) parental responsibility as between the parents.[10] In the circumstances of the case, there was necessarily due consideration of the impact on the child’s Mother (especially given her conviction about the Father and her general anxiety) should the Court order that the child spend time with the Father.
[10] See T 17
For the reasons that follow, with relevant adjustment in relation to commencement date(s) and the like, I accept and adopt the Orders sought by the ICL as those that are in the child’s best interests pursuant to s.60CA of the Family Law Act 1975 (“the Act”).
Minute of Orders Sought by the Applicant Father
The Father filed a Minute of Orders Sought on 7th June 2017, via e-mail to Chambers which was in the following terms:
Orders Sought
1) Denigration order for both parties
2) Non-discussion order for both parties
3) Parenting order
That the father has increasing contact with the Child, beginning with Marymead supervision, progressing to family supervision (by any combination of supervisors and locations listed in Table 1), and within a period of not more than six months culminating in fortnightly unsupervised access as detailed in Table 2 and ongoing. Noting that this supervision is to allay the Respondent’s fears, not due to any risk to the Child.
Table 1: Proposed Supervisors and locations for family supervised visits.
| Name | Relationship to Applicant | Suitability | Location |
| Mr P | Brother | Mr Featherstone has 2 grown children | (omitted) |
| Ms J | Mother | Ms J has 6 children, 14 grandchildren and 7 great grandchildren | (omitted) |
| Ms G or Mr M | Sister and Sister’s husband | Ms G has 3 daughters and 2 (and a half) grandchildren Mr M has 2 daughters. Ms G’s grandchildren live with Mr and Ms G. | (omitted) |
| Mr or Ms C | Family Friends | Mr and Ms C are a (omitted) with the (omitted), (omitted); with children and grandchildren from previous marriages. | (omitted) |
| Ms D | Partner | Ms D has a son (b. 1998) has held a (omitted) and often visits Canberra. | (omitted) |
| Mr R | Cousin | Mr R has 5 children and several properties | (omitted) |
| Other supervisors | By prior agreement with Respondent | ||
Given the Respondent’s answers under cross examination by Judge Neville, the Independent Children’s Lawyer and the Applicant, the Applicant is of the belief that the Respondent will struggle to meet the terms of the Order and may take advantage of any ambiguity therein. For this reason, the Applicant requests that actual dates and times for access (Table 2) be added to the Order to prevent any alternative interpretation of the visitation schedule. All communication is to be via brief email to prevent verbal miscommunication. Medical certificate to be provided if visitation cancelled.
Table 2: Proposed dates for increasing visitation regime.
| Date 2017 | Location | Length of time | Details |
| 27 May 24 June 22 July | Marymead | 3 visits over 2 months 2.30-4.30 pm | At Marymead. If further supervised visits are requested, Respondent bears cost |
| 5 Aug | Family supervised short visits | 1 visit to transition from contact centre 1.30-3.30pm | At the Civic library as this is a familiar space for [X], supervised by one or more of the supervisors in Table 1. |
| 19 Aug | Family supervised short visits | 1 short visit transition to home environment 1.30-4.30pm | At one of the locations specified in Table 1; supervised by one or more of the supervisors in Table 1. |
| 2, 16 Sept | Family extended visits | Half day visit on a Saturday afternoon 12.30-5.30pm | At one of the locations specified in Table 1; supervised by one or more of the supervisors in Table 1. |
| 30 Sept- 1 Oct | Family extended visits | School holidays overnight visit 9am Sat to 6pm Sunday | At one of the locations specified in Table 1; supervised by one of the supervisors in Table 1. |
| 14, 28 Oct 11, 25 Nov 9 Dec | Family overnight visits | Saturday nights 12.30pm Sat to 2pm Sunday | At one of the locations specified in Table 1; supervised by one of the supervisors in Table 1. |
| 22-25 Dec | Unsupervised but spent with family | School holidays Pick up Friday afternoon return 12.30pm Monday | As the Applicant has not had Christmas with [X] for 3 years, Christmas morning spent with Applicant. |
| 5 Jan 2018 ongoing | Unsupervised | Fortnightly Friday pm pick up; Monday morning drop off. | At one of the locations specified in Table 1 unless a new abode is established prior. Collection from and return to school during school term; or to previous meeting site. |
| 22-28 April 2018 | Unsupervised | 50% of School holidays | At one of the locations in Table 1, or as agreed with Respondent |
| 6-13 July 2018 | Unsupervised | 50% of School holidays | At one of the locations in Table 1, or as agreed with Respondent |
| 5-12 Oct 2018 | Unsupervised | 50% of School holidays | At one of the locations in Table 1, or as agreed with Respondent |
| Ongoing | Unsupervised | Fortnightly access | Ad libitum |
| Ongoing | Unsupervised | 50% of School holidays | Ad libitum |
Increasing contact with the Child, [X]
4) Marymead Supervision 27 May 2017 to 22 July 2017
To take place at times advised by Marymead, for a period of nine weeks (three visits at the current availability rate of one per month). Currently utilising fee free allocations, but if the Respondent insists on further visits these would be fee for service at the Respondent’s cost. Under Section 60CC (2a), the Applicant opposes extended contact through Marymead on the following grounds:
a) Frequency of contact – Marymead currently only have availability for two hours, once per month. This short visit time, coupled with extended duration between visits, is not conducive to developing a meaningful relationship between the Child and the Applicant.
b) Artificial environment – similarly, a contact centre does not provide a sufficiently stimulating environment for enhanced father–child interactions in the long term.
c) Limited opportunity for Applicant to develop parenting skills – Limited range of activities and the presence of a third party is not conducive to the Applicant being placed in a situation where care, guidance and appropriate discipline of the Child can be demonstrated.
5) Family Supervision 5 August 2017 to 22 December 2017
That the Child be collected from a site specified by the Respondent; and returned to the same site at the end of the visit. A specific MacDonald’s franchise would an ideal site due to their extended opening hours and range of locations (poor diet selection notwithstanding). Respondent to bring the Child to the agreed site, or arrange for a friend or family member to transport the Child. As family supervision would require a second person present at all times, which may not be conducive to regular household activities, the Applicant proposes that the supervisors and locations in Table 1 be employed in any combination to ensure that the Child has both the Applicant and a Supervisor present at all times to allay the Respondent’s fears. All of the proposed Supervisors are experienced with children and none have had cases brought against them for inappropriate behaviour with children.
6) Unsupervised visits
Access every second weekend for three nights. Collection times are scheduled for after school pick up on Friday and school drop off on Monday during school term to circumvent the need for the Respondent to see the Applicant. Outside of school terms, collection and drop off at the site previously specified by the Respondent. Visitation takes place at locations in Table 1 plus additional locations for example, if the Applicant is to take the Child interstate for the weekend. Travel within Australia is accepted by both parties. International travel opportunities require agreement and signature from both parents.
7) School holidays, special days and events
The Applicant seeks to spend half of each school holiday period with the Child, which may include interstate travel. The Applicant further seeks time on special occasions including, on alternate years, [X]’s birthday, Easter and Christmas; and each year on Father’s day and the Applicant’s birthday. The Applicant seeks to be provided with information about [X]’s school and extracurricular activities, with notice of special events (carnivals, performances).
8) Inclusion in health and welfare
The Applicant further seeks to be provided with information about [X]’s health and wellbeing, to be notified prior to medical and dental appointments and to be included in decisions made regarding his welfare and his future. Finally, the Applicant seeks to be provided with photos of [X] from birth to age four.
9) Residency
The Applicant grew up with five siblings, and is well aware of the importance of family. He is therefore reluctant to have the Child removed from the Respondent at this stage. If, however, the Respondent’s emotional abuse of the Child continues, the Applicant will have no choice but to pursue residency orders. In any case, the Applicant would consider 50% care in future.
The Applicant’s companion, Ms D, sent an e-mail to Chambers on 13th July 2017, which was not copied to the other parties but provided by the Court to them, addressing the following additional Orders Sought:
“The dates proposed [by the Independent Children’s Lawyer] fall on the 16th and 30th of December 2017. As Mr Featherstone has not seen [X] on Christmas Day for the last three years, would it be at all possible for [X] to have an additional visit so he can spend some time on Christmas Day 2017 with his paternal family, perhaps 12pm to 4pm?
…
We have a couple of questions [in relation to the Independent Children’s Lawyer’s Minute of Orders Sought] that will no doubt be sorted in the final orders:
Item 2.7, cf 2.5 and 2.6, should this perhaps be June 2018?
Item 3.4 Should this read 'Mother's' day, and ..with their father 'on Father's day...'?
Item 4.1 Communicating with [X]. We are unsure how to facilitate this. Does Ms Adey ring Mr Featherstone's phone on [X]’s behalf? (cf item 7). Could a mechanism be specified in the orders?”
Minute of Orders Sought by the Respondent Mother
The Mother filed a Minute of Orders Sought on 22nd May 2017. Those Orders sought were as follows:
Parenting
1) The Respondent mother have sole parental responsibility for [X], born (omitted) 2012 (“the child”).
2) The child live with the Respondent mother.
3) Upon the Applicant father providing to the Respondent mother, written confirmation of his enrolment at and completion of all preliminary matters required by Marymead (Children, Families, Community) (“Marymead”) for inclusion in their child contact supervision service, the Applicant father spend time with the child as follows:
a) Under the supervision of Marymead, or such other supervision provider as may be agreed between the parties, in writing;
b) On Saturday every four weeks, between 2.30pm and 4.30pm, or with such other frequency as the supervisor may provide;
c) Such other times as may be agreed between the parties in writing.
4) The cost (if any) of the supervision service be met by the Applicant father.
Minute of Orders Sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer filed a Minute of Orders Sought on 12th July 2017. Her Orders sought provided that:
1. The Applicant Father and the Respondent Mother have equal shared parental responsibility for the child [X] born on (omitted) 2012 (“the child”).
2. Subject to the following orders in respect of holidays and special days, that the child live with the Mother and spend time and communicate with the Father as follows:
2.1 Until 1st October 2017 at Marymead for two hours on every fortnight.
2.2 As from the 1st October 2017 at the Civic Library for two hours every fortnight unsupervised and agreed in writing and failing agreement on Saturdays from 1:30pm to 3:30pm.
2.3 As from the 1st December 2017 for 6 hours every fortnight and failing agreement from 11:30am to 5:30pm on Saturdays.
2.4 As from 1st January 2018 for 8 hours every fortnight and failing agreement from 9:30am to 5:30pm on Saturdays.
2.5 As from the 1st February 2018 from after school on Friday until 5:30pm on Saturday each fortnight.
2.6 As from 1st May 2018 from afterschool on Friday until 5:30pm on Sunday every second weekend.
2.7 As from 1st February 2018 from after school on Friday until before School on Monday every second weekend.
3.1 Commencing on 1st July 2018, that during the School Holiday period, Order 2 is suspended and the child spend half of the Term 1, 2, and 3 School Holidays as agreed between the parties, but failing agreement, the first half with the Mother, and second half with the father.
3.2 The child spend time with the parents at Christmas Summer School Holidays as follows:
a.) In even years commencing 2018 for the first week with the Father and for the second week with the Mother, and then for 2 weeks with the Father and for two weeks with the Mother.
b.) In odd years commencing 2019 for the first week with the Mother and for the second week with the Father, and then for 2 weeks with the Mother and for two weeks with the Father.
c.) Such other times as agreed in writing.
3.3 As from 2019, in the event that the Easter long weekend falls outside the School Holidays, the child shall spend time with the parents from after school on Easter Thursday until before school on the following Tuesday on a rotating basis with the Father having the first of these occasions and the Mother having the second, and alternating thereafter.
3.4 Notwithstanding the above, the child shall spend time with their Mother on Monday’s Day from 9:00am until 4:00pm and with their Father from 9:00am until 4:00pm, unless otherwise agreed in writing.
3.5 Unless otherwise agreed in writing, if changeovers cannot be effected at school or Marymead, they shall occur at (omitted)’s.
3.6 That the child spend time with the parent who is not caring for him on his birthday as follows:
a.) On a school day for 2 and a half hours from after school until 5:30pm,
b.) On a non-school day for 4 hours from 9:00am until 1:00pm, unless otherwise agreed in writing.
4.1 The child shall communicate with the parent who is not otherwise caring for him via phone, skype or facetime as follows:
a.) On Mondays, and Thursdays between 5:00pm and 6:00pm,
b.) At all reasonable times as requested by the child.
4.2 If the child is not with the other parent on his or her birthday the child will communicate via phone, facetime or skype with the other party between 9:30am and 10:00am on a non-school day and between 7:30am and 8:30pm on a school day, and each parent shall facilitate this occurring unless there is an emergency.
5. For the purposes of the above orders, each parent shall:
a.) Ensure that he or she facilitates the communication,
b.) return any missed calls within a reasonable period,
c.) afford the child privacy and not record any communication between the child and the other parent or any family member who is communicating with the child.
6. Unless in the event of an emergency or urgency the parents shall be permitted to communicate with each other through emails, or communication book or talkingparents.com website.
7. In the event of any emergency or if there is an urgent need to inform the other parent of a matter which it is in the child’s best interests for the other parent to receive this information as soon as possible, then each parent is permitted to telephone or text the other.
8. Neither party shall denigrate or belittle the other party or the other party’s family members in the presence or hearing of the child or allow any other person to do so.
9. Nothing in these orders authorises the Mother or the Father to send any rude, harassing, offensive or abusive communication to the other party any communications between the parents shall be in a concise, polite and businesslike manner which deal solely with issues pertaining to the child’s health, education, welfare or development.
10. Unless in the event of an emergency the Mother and the Father shall use their best endeavours to provide full information in writing about any medical, orthodontic, dental, physiotherapy, optometric, specialist, psychological, psychiatric and or counselling appointments for the child, including times, dates, services to be provided and cost.
11. Failing agreement about any services to be obtained, the parents shall consult the child’s treating general practitioners, and follow his or her recommendations as to what services are desirable or necessary for the child’s health, welfare or development.
12. Each parent shall do all things necessary to promptly notify the other parent in advance of any appointment of all relevant information concerning the child’s health providers including the full name, address and contact details of the health provider and the reasons for he or she wishing to make the appointment.
13. Each parent is hereby authorised at this or her expense to obtain all information and documents, records or notices relating to the child’s health, education, welfare or development from any provider or treating professional and the mother shall forthwith provide the father with written notice of the name and address of the child’s school and General Practitioner and keep this information updated and current.
14. Each parent is hereby authorised to attend any school functions, extracurricular sports events or activities to which the parents are normally invited to attend.
15. Each parent shall ensure that he or she does not harass, threaten, intimidate or insult the other at any event, function, appointment or occasion at which the other is in attendance relating to the child’s health, education, welfare or development and shall use his or her best endeavours to ensure that any family member also in attendance is able to behave towards the other parent or their family members in a polite and business-like manner.
16. Each parent shall ensure that he or she takes all necessary steps to prevent the child from being subject to hearing or seeing any conflict involving their parents and/or family members.
17. Each parent shall ensure that he or she provides to the other current and up to date telephone, email and communication details.
18. Each parent shall use his or her best endeavours to reach agreement in writing in respect of the child’s sporting and extracurricular activities from time to time as required.
19. In the event of a dispute that cannot be resolved through mediation or counselling within 28 days concerning extracurricular activities then each parent shall be permitted to nominate one sporting or extracurricular activity per year for the child, and the following provisions shall apply as to their nominated activity or sport:
a.) subject to the below the parents will each use their best endeavours to ensure that the child attends on time to their games, functions and training sessions if applicable.
b.) If during a parent’s care of the child a parent is unable or unwilling to facilitate the child’s participation or attendance at his games, functions and training sessions then he or she shall provide reasonable and prompt notice to the other parent who is permitted to take reasonable steps to ensure the child travels to and from and participates in his games, sessions or functions.
The Father’s Evidence
Summarised, the Father’s evidence was as follows.[11]
[11] A summary of “issues” for determination, already noted in these reasons, was canvassed at the trial. See T 17.
Separation between the parties occurred in January 2014. At that time, the child, [X], was approximately eighteen months old. The Father confirmed that the first he learnt of the Mother’s concerns, such as to warrant his time with [X] being supervised, was by way of e-mail from the Mother, dated 28th March 2014, which is annexure C to his Affidavit, filed 30th April 2015. When asked about the time he was spending with [X] at that stage, the Father said that he did not do anything about the “time-with” arrangements then because he was having trouble communicating with the Mother.[12]
[12] T 21.
The Father confirmed that his “current” living situation was (in my words) somewhat fluid – he has lived with his sister, his Mother and with his eldest brother, as well as with his cousin who lives “(omitted).” He said that when he ultimately is able to spend unsupervised time with his son it would more likely than not be at his sister’s place because it was “better set up” there.[13] He has a property at (omitted) on which he hopes/intends to build a residence but, with modest funds from his regular work as a (occupation omitted), he was not confident of being in a position any time soon to begin that building project.
[13] T 22 – 23.
The Father said that in January 2015 (or thereabouts) he was suffering from “major depression.”[14] As he explained, he was dealing with many things in his life, which obviously in his view, left him somewhat debilitated. Clearly this was the Father’s self-diagnosis as opposed to any clinical diagnosis, which was not, in any event, before the Court.
[14] T 27.
The Father said that he accepted that it was the Mother’s genuine belief that [X] was at risk of harm if left alone in the Father’s care.[15] He also said that he had had read to him the Mother’s expressions of distress and anxiety about [X] spending any unsupervised time with the Father.[16] This anxiety and the like has had, according to the Mother, an adverse impact on her sleep and on her ability to work. He also acknowledged that the Mother has expressed thoughts of suicide and self-harm arising out of these matters. She blames herself for not protecting her child: the Father said that he had seen these matters raised by the Mother. He said that he understood the Mother was stressed.[17]
[15] T 29.
[16] T 30.
[17] T 30 – 31. The Father here outlined his means of dealing with his own stress, such as visiting relatives “(omitted).”
The Father commented that he was dealing with his own “stress”, namely not seeing his son.[18]
[18] T 31.
I pause here to note that, in my view, the Mother’s entrenched belief in the risk posed to [X] by the Father is perhaps the most central factual or evidentiary matter, which affects almost all else, in the proceeding. As noted later in these reasons, the Mother’s own doctor confirmed that there was no evidence that the child had been sexually abused at all (which medical opinion the Mother does not accept). Nor is there other evidence of relevant abuse.
Even the somewhat equivocal Family Consultant could not, and properly would not, say that there was any evidence of abuse. The reality is, however, that the Mother earnestly believes that the Father is a “risk factor” in the life of the child. The Family Consultant acknowledged this. So intense is the Mother’s conviction regarding the Father that, among other things, there must be some risk of that belief, at some stage, being transmitted or conveyed to the child, which is (in turn) likely to harm the child’s relationship with the Father, perhaps even irreversibly. To say the least, if this was to occur, it would very likely be highly detrimental to all concerned but especially the child and the Father. Indeed, subject to what is said later in these reasons, the child could come to share the Mother’s intense belief without any specific or evidentiary basis for it.
Likewise, the Mother’s continued adverse apprehension about the Father is likely, without proper professional assistance being provided to her, to lead (or may do so) to a further deterioration in her own mental and physical health. In my view, the Mother needs significant and urgent professional assistance.
The Father said that he had proposed that [X]’s older siblings attend any “time-with” arrangements so as to make it more comfortable for [X]. He thought that such familiar faces as his siblings would make it easier for [X].[19] In my view, whatever the views of the Mother’s older children about the Father, this showed a degree of insight into and appreciation by the Father of the needs of his young son and ways which might alleviate any difficulties the child might have in the early stages of any resumed time with his Father.
[19] T 31.
The Father said that he thought the Mother’s older children had been “coached” to say negative things about him.[20]
[20] T 32.
The Father’s answers overall were, in my view, candid, even when, such as in what follows, it might have been expected that he would be either embarrassed, awkward and/or troubled. It concerned his sleeping attire (or lack of it) and what he described as a common physiological reaction of “males” early in the morning.
The Mother contends, among other things, that she saw the Father become sexually aroused one morning when the Father, laying naked in bed with an erection had the child in bed with him. Significantly, the Father was covered by a sheet and the child was on the sheet. In response, the Father said that he almost always had an erection in the morning, which was primarily due to him needing to go to the toilet. He confirmed that he was not sexually attracted to his son.
On another occasion, in January 2014 or thereabouts, the Mother contended that she heard the Father making noises that suggested that he was becoming aroused. To these matters the Father confirmed that the Mother had expressed her concerns to him, and that he was simply making “silly noises to my son because he was laughing at me.”[21]
[21] T 34 – 35.
In my view, in relation to the two instances relied upon by the Mother upon which the Father was questioned, (a) there was no evidence put to the Father by the Mother regarding the disposition of the child on these occasions (cf. the Father’s evidence of the child laughing with/at the Father on the second occasion), and (b) the Father’s evidence was very reasonable and completely plausible in the circumstances. Nor was there any challenge to the Father’s evidence about him, historically and otherwise, sleeping naked. I accept his explanation(s).
There was some brief discussion with the Father about some heated disputes with the Mother obviously when they still lived together. He said that on these occasions, which were primarily when the Mother was undergoing chemotherapy, he simply sought to match the tone and volume of the Mother’s voice at the time. He said that he was “fed up” trying to talk with someone who was, in his view, “completely unreasonable” at the time.[22]
[22] T 35.
The next “incident” of moment relied upon by the Mother related to two occasions when the Father “sucked the toes” of the Mother’s [then] 11 year old daughter, [A]. The Father’s response to these two incidents were that (a) this child had been harassed by her brothers about her smelly feet, and (b) he had done this, on two occasions, once in public (in a furniture shop) and the other time in front of other members of the family in the lounge room. He said he did it (i) to show that there was no problem with the smell of the girl’s feet and (ii) without any sexual overtone at all. He confirmed that he had never done anything similar to the Mother in the course of their relationship.[23] He confirmed also that the Mother had spoken to him about the incidents, and also that the girl had, through her Mother, indicated her dislike of what the Father had done.
[23] T 36 – 37.
However unusual and or unsettling to the Mother and her daughter these two events had been, which I accept, I also accept the Father’s evidence regarding the localities where they occurred (which were not challenged) which makes his account of them, and the lack of sinister or other adverse motivation, all the more credible. Again, I accept the Father’s evidence in these respects in relation to this evidence.
The third event of concern to the Mother was similarly generally agreed as to its factual occurrence and its circumstances by the Father but not as to the interpretation, or motivation, and still less as to its alleged consequence(s) by the Father.
The event in question related to an occasion when the child’s nappy was being changed and Sorbolene cream was being applied by the Father for the child’s nappy rash at the time. He said to the Mother words to the effect “What if my finger slips in [to the child’s anus]?” The Father confirmed that, at the time, the Mother looked at him “in a funny way” but not in disgust. He stated, more than once, that it was said as a “joke” but obviously [now] the Mother did not regard it as a joke.[24]
[24] T 37 – 38. See also the further brief question and answer at T 87.
Again without lessening the “blue joke” (the description is the Mother’s experienced lawyer’s), as it was put to the Father, some account must be given to and taken of both the circumstances at the time, including the apparently very fleeting nature of the event, as well as the benefit of hindsight - as the Mother seemingly views the event through the traumatic lens that colours her view of all things - and events during the time of her relationship with the Father. I do not say this in any hyper-critical way of her. It would at least seem that the Mother has become, since the separation, both hyper-vigilant and especially sensitive to any and all things associated with the Father and their son. Again, I do not say this in any pejorative or critical way but rather as an observation of the fact of her [current] disposition and her delicate, if not vulnerable, temperament and character. Some of this fragility must, it seems to me, be attributed to the Mother’s medical circumstances including the harsh and demanding effects of her chemotherapy. Indeed, the Father said in his evidence, rather solicitously in my view, that he did not think that the Mother was generally coping with things at the time, including with [X]. He said he was worried about the Mother and all the children generally.[25]
[25] T 38 – 39.
Next, the Father was asked about an occasion when, allegedly, he put the same child, [A]’s, hand in his pocket. As he explained, he, the Mother and her children were at the (omitted). He felt the child’s hand and said it was “freezing cold.” He said he took it and put it in his coat pocket (not his trouser pocket), which was near his hip, to warm her hand.[26]
[26] T 38.
Claims were put to the Father by which the Mother’s older children reported to Ms S that he had smacked [X]. The Father firmly stated that, in his view, the children had been coached to say such things. He outlined his (and the Mother’s) general approach to dealing with the child when he cried.[27]
[27] T 38 - 39.
The Father said that he accepted that if [X] came to live with him the Mother would likely be devastated. He said that her devastation would be somewhat like his own “heart-break” at not seeing his son.[28] In my view, the mutuality of the “heart-break” suffered or likely to be suffered by each parent showed some insight by the Father.
[28] T 39.
The Father also spoke very genuinely about his esteem and very high regard for Mr W (the Mother’s Father), who had, for quite some time, “supervised” the Father’s time with [X]. Moreover, in Mr W's Affidavit, filed 16th May 2017, he confirmed, at par.8: “For the period during which I supervised [X]’s contact with Mr Featherstone [the Father], there were no incidents or reactions from [X] that gave me any cause for concern. [X] enjoyed his library visit break from child care…”
There was some discussion with the Father in relation to certain references set out in his Affidavit to academic writings. These had clearly been provided by his friend, Ms D. Those writings, to which I have no regard, make various comments about personality types known as “Asian tiger mother”.[29] It was sought to use this material to support a contention that depriving the child of time with the Father did not promote the child “knowing both parents.” Such a concept or principle is, of course, set out in the objects and principles in Part VII of the Act, specifically in s.60B(1) and (2) and s.60CC(2).
[29] T 44.
The Father said that, in his general view, the Mother depriving [X] of time with him could amount to “emotional abuse.” Otherwise, he was complimentary of the Mother’s care of the child, albeit that she was, at times, a “very protective parent.”[30]
[30] T 46.
In answer to questions from the ICL, the Father said that he had not been informed by the Mother where the child went to, or goes to, child care. Nor had he been advised of any health issues regarding the child by the Mother.[31] The Father confirmed that he did not know what school the child would attend. He said that he would love to attend [X]’s first day of school. He had never seen a pre-school report on [X]; nor had he been asked to participate in any “learning journeys” regarding his son. He was not aware of any trips the child had been on.[32]
[31] T 93.
[32] T 93 – 94.
He said that he was aware of the Mother’s concerns about him spending unsupervised time with the child, and agreed with the ICL that perhaps some counselling would help, perhaps both parents deal with the situation.[33]
[33] T 94. The only other matter of possible relevance to the current proceeding that was canvassed briefly in the course of the Father’s evidence was his lack of “contact” and in turn lack of relationship with an older child from an earlier relationship. The main reason for the lack of relevant contact was the yet to be determined issue of whether he is in fact the Father of that older child. That relationship may, subject to the result of any paternity test, be of some relevance to [X] in him having a much older sibling on the Father’s side. As at the date of the hearing, the issue of paternity of that older child had not been resolved.
Evidence of Ms D
Ms D’s evidence, on behalf of the Father, was very brief.
By training and employment, she is a (occupation omitted). She currently works, on secondment, in a “(employer omitted)” at the (employer omitted).[34]
[34] T 96. Ms D’s formal qualifications are set out in her affidavit, filed 10th May 2017, which includes having studied (omitted) – obviously, because of her title.
After brief discussion about the nature and degree of assistance she has provided to the Father (e.g. reading documents and helping to prepare affidavits), what she knew of the Father's involvement with an older child, and her research in relation to “identity formation”, which was set out in the Father’s Affidavit,[35] there was a more pointed discussion concerning Ms D’s view of the Family Report.
[35] See the brief earlier discussion in the Father’s evidence regarding “Asian tiger Mother”.
Ms D expressed a range of “concerns”, which included what she described as concern about the legal representation that the Father formerly had, as well as about the “appallingly unprofessional and biased” Family Report. She said that she empathised very much with the Mother and outlined why this was so (including having undergone chemotherapy), and why, in her view, the Mother may have misunderstood and misinterpreted the Father and his actions.[36]
[36] T 98 – 99.
Ms D also said that she had discussed with the Father each of the allegations as raised by the Mother, and confirmed that he denied them.
Oral Evidence of the Mother
Summarily stated, the Mother’s oral evidence, which was obviously very difficult for her, was as follows. In no critical way, her evidence was difficult both to hear (because of the Mother’s very quiet but also very timid and anxious voice) and obviously for the Mother to give, given her anxiety and conviction of the Father being a sexual predator and risk to children.
The Mother said that her first concerns about the Father’s conduct towards the child began “shortly after [[X]’s] birth”, and continued, on her evidence, over a period of time. From time to time she would let the Father know of her concerns, including (somewhat regularly) her concerns about the Father having an erection when holding or cuddling the child. At the same time, she also said that notwithstanding her misgivings about the Father she continued to allow the Father to spend time with the child.[37]
[37] T 105 – 107.
The Mother confirmed that she went back to work in March 2013 and left the child in the Father’s sole care until [X] was put into child care in July of that year. She confirmed that, after occasions when she said the child screamed when on the change-table (and in her view she said she knew that something was wrong), she did not take the child to see a paediatrician or someone else with experience with babies because she “did not want to voice what [she] was thinking.”[38]
[38] T 108.
The Mother also said that she thought (and perhaps still thinks) that the Father was just “naïve”. She also said that she tried to convince herself that she was not seeing what “I was seeing.”[39] She also confirmed that other behaviour of the child was not, in her view, related to [possible] sexual abuse but that otherwise “there was something not right.”
[39] T 108.
There was an incident, the Mother said, where she saw the Father blowing over the child’s genital area, who had on a nappy at the time. The Father said that he was simply trying to make the child giggle.[40] The Mother disbelieves him, as she does on all else. She confirmed that when these “incidents” were taking place between the Father and the child, her relationship was not strained so much as “indifferent.”[41]
[40] T 109.
[41] T 110.
She recounted another incident, in January 2014, which again focussed on her concerns that the Father was sexually aroused when holding or being in close contact, with his baby son. At the time, she said that she took the child from the Father. She did not recall anything the Father might have said at the time.[42]
[42] T 110 – 111.
The next series of incidents related to the child’s day-care facility calling the Mother about the prospect of there being some blood in the child’s nappy. The centre said that it was not known if it was blood or food colouring. The Father said that a nurse told him that the substance in the child’s nappy was food colouring. The Mother simply stated that she saw some colouring but also confirmed that no report was recorded by the police even though the Mother went to (omitted) Police Station some days after this incident. She made a later complaint about the [lack] of police intervention and their handling of her original report.[43]
[43] T 112 – 115.
Still in relation to the “blood in the nappy” incident, the Mother confirmed that she took the child to a medical practitioner. That doctor undertook a medical examination of the child. There was a degree of confusion (in my view) in the Mother’s evidence on this aspect (as it was on some other areas), such as whether, in her view, the doctor knew what he was doing (she said that “she [the Mother] had no idea”). In any event, as the following exchange makes plain, the Mother remained convinced about the predatory nature and actions of the Father notwithstanding the lack of medical evidence, from the child’s examination by her GP, to support it. Thus, in exchanges with the ICL, the Mother said:[44]
[44] T 115. See also T 122 where the Mother confirmed that she asked the GP who did the examination of [X] if there was anything to suggest “sexual activity” in relation to the child, and the GP said that there was not.
Well, what I want to suggest to you is that, even having that diagnosis, you weren’t comforted at all by it, because you had a conviction that the child was being abused by his father?‑‑‑Because there were many other instances and other occurrences.
All right. So the answer is, yes, you were convinced and were ‑ ‑ ‑?‑‑‑Sorry?
‑ ‑ ‑ absolutely positive that this had happened, even after you saw the doctor?‑‑‑Yes.
And you hold that belief to this very day?‑‑‑Yes. Yes.
And having – and holding that belief, have you thought about how you were going to cope and manage if his Honour is to determine that there is no risk or any sort of unacceptable risk to your son if he has unsupervised time with his father?‑‑‑I find that very frightening because of what I saw. It was once said to me by a previous lawyer, “It’s a shame you didn’t record what you saw.”
Well, that’s not my question. What I’m ‑ ‑ ‑?‑‑‑I know.
What I’m asking you, Ms Adey, is what are you ‑ ‑ ‑?‑‑‑I couldn’t cope.
‑ ‑ ‑ going to do to manage your anxiety and your fears if his Honour is minded to make an order that would see, within a reasonable period of time, his father having no supervision when he looks after [X]?‑‑‑I just – I know that it would not be a wise decision.
HIS HONOUR: Sorry. I missed that?‑‑‑I’m sorry. I just – it’s – it’s not a good decision to ‑ ‑ ‑
No, no. But, sorry, but that isn’t the question?‑‑‑I know. I know. I know the question ..... I don’t know how to answer that question.
MS LLOYD: So is the answer that you have avoided thinking about it, or you refuse to think about it, or what?‑‑‑I – I don’t know how to think about it.
But the father’s application for unsupervised time has been on for at least two years now?‑‑‑And that’s why I’m fighting it.
The Mother confirmed that in 2015 she obtained a “mental health plan” and had been seeing various counsellors (including a psychologist). She said that such people were “very helpful”, including giving her strategies in dealing with her anxiety, among other things.[45] She confirmed that she had been put on medication to assist her; it had been increased in 2016. That said, the Mother said that she had not been referred to a psychiatrist for any “major depression disorder”.[46]
[45] T 116.
[46] T 117.
The Mother agreed with the proposition put to her by the ICL that, notwithstanding her anxiety regarding the Father, she had been still going to work and caring for her older children. In short, she agreed that she had been able to function “very well” but went on to say that she did not know how she would cope if the Court permitted the Father to spend time with the child and would be “very fearful.”[47]
[47] T 117 – 118.
In terms of her “thoughts” regarding the Father’s time with [X], and related matters, including the Father attending [X]’s first day of school, and matters relating to the Mother’s daughter, [A], the Mother’s somewhat wide-ranging comments were as follows:[48]
[48] T 118 - 119
In relation to the father’s application, is there – you’ve simply said that fortnightly if Marymead allow it, but monthly otherwise, is the option. So does that mean that you haven’t thought about telephone calls, or you wouldn’t think they would be successful or what’s ‑ ‑ ‑?‑‑‑No, I hadn’t thought of that at all.
What about special occasions and things like that? Have you thought about there being some time – stage in the future when [X] might be able to spend time with his father on special occasions?‑‑‑No, I haven’t entertained that idea.
HIS HONOUR: Sorry. Why not?‑‑‑Sorry?
Why not?‑‑‑Because of his conduct and it’s not something that I wanted to think about.
Can I ask you this?‑‑‑Yes.
Is there anything that anyone can say or do that is going to give you any assurance, at any time, that the father is not a threat to [X]?‑‑‑It has not been showed to me that he is not a threat.
No, no, no?‑‑‑I know.
That’s not my question?‑‑‑I know.
So there’s nothing that anyone can say or do that is going to assuage your anxiety or concern, if there was such a person?‑‑‑If there was such a person, someone who had lived with him for a certain length of time and had little children and it had never happened to them. I don’t know who would – who would be able to comfort me that it wouldn’t happen to [X] after what I’ve said.
So you don’t accept, for example, that Ms D, who has known Mr Featherstone for a very long time, has no concerns?‑‑‑She has never lived with him.
MS LLOYD: And in relation to moving forward, is there any reason that Mr Featherstone couldn’t attend, say, at [X]’s first day of school next year, when there’s adults and kids and teachers around?‑‑‑I don’t think it’s appropriate for him to be around children.
So even – so you have him as such a danger to children that he shouldn’t even attend in a classroom setting or at a school function?‑‑‑That’s right.
So you believe that he is a sexual predator?‑‑‑I do.
On the basis of the things that you’ve put in your affidavit?‑‑‑Yes.
And some of the things that you refer to, your conviction that the only interest that Mr Featherstone had in relation to [A] was to groom her and sexually exploit here. Is that your conviction?‑‑‑Sorry. Say that again.
The only interest that Mr Featherstone had in [A] was to sexually exploit her and to groom her. Is that your conviction as well?‑‑‑I have no idea if that was his only intention.
Well, tell me what things you observed that might point in the other direction, that he wasn’t a sexual predator?‑‑‑It was the – I – I didn’t see anything that wasn’t – the problem is, it was a daily occurrence; when [A] was there, things were happening.
But, at the time, you made no contemporaneous reports to, say, DoCS or to anybody about that?‑‑‑No, because, again, it’s not something I wanted to believe was going on.
And now you want to believe it? Is that the difference?‑‑‑No. It was more of a point of, I had run out of excuses to give.
This somewhat extended exchange highlighted, again, the Mother’s unswerving negative view of the Father and her very high levels of anxiety. There is little doubt that she believes her account of events and no challenge to that belief is either permitted or can make any dent in her conviction that, as she said, the Father is a “sexual predator”. Respectfully, I do not share the Mother’s conviction. Factually, the evidence is not there to support it. There are certainly “hints” and or “shades” in the evidence which certainly give rise to questions. But the gravity and the certainty of the Mother’s position seems very much to be a function of her own doubts coupled with a rising tide of anxiety that simply grows with each passing day, even though the Father is nowhere in the child’s life, and has not been for quite some time. Nothing seems to assuage the Mother’s highly refined levels of anxiety.
The Mother also confirmed that, if the Court allowed time between Father and son, beginning with supervised time, she had given no thought to how she would communicate with the Father. When asked more specifically, she said that maybe a communication book might assist.[49]
[49] T 120.
After some questions from the Father, and some from the Bench, the Mother rather plaintively that she “didn’t understand [the Father’s] actions at all.” This was amplified a tad later when she said that she was referring to his actions with or toward the child, and even more specifically toward her daughter, [A].[50] And in answer to further questions about the Father’s “actions”, conduct and responses more generally (including his communication), she said that she did take into account his dyslexia.[51]
[50] T 128.
[51] T 129.
In answer to further questions from the Father, based on documents produced under subpoena from Catholic Care, there was the following exchange:[52]
THE WITNESS: So in reference to this sentence:
Ms Adey caught her ex-partner sexually assaulting their three-year-old son
[52] T 131.
it would be my view that they’re generalising the extent of what I witnessed.
HIS HONOUR: So you say that’s a generalised statement?‑‑‑I think that would be right in that it’s compiling all what I saw. I didn’t physically see him penetrating my son.
The following discussion between the Father (primarily) and the Mother is also instructive:[53]
[53] T 131 – 132.
MR FEATHERSTONE: Do you agree that [X] should be protected from physical harm?‑‑‑Yes.
So you would agree, then, that he should be protected from psychological harm then too?‑‑‑Yes.
Do you think that your – do you think it’s possible that your fear is harming to [X] and his development?‑‑‑No.
Taking into consideration your fear, how long do you expect – or how long do you expect you will require supervised visitations?‑‑‑I would – it was – it was my hope it would be until he is at least 16, at least.
HIS HONOUR: So you think a child going to a contact centre for perhaps close to 10 years is a good option?‑‑‑I do, to keep him safe.
And further, in answer to a question from the Bench, the Mother said:[54]
Can I ask this: just say a supervision order is made, and [X] is eight or nine, etcetera, and he says to you, “This supervision stuff at this contact centre is hopeless. I want to spend some time with dad somewhere else,” what would your response to that be?‑‑‑I would like to take – I would want to take advice on that, because I would want to know – as a parent, to protect my child from abuse, I would want to know how freely I can disclose to him, or if I just have to advise him on how to keep himself safe.
What if he’s 12 and says, “Dad and I have been having such a great time,” what are you going to say to that?‑‑‑I would still want the same advice.
[54] T 132.
In my view, accepting the timidity and anxiety of the Mother, such answers about taking “advice” about what should be (in my view in the light of the evidence) relatively straight-forward issues is concerning. This was also an issue in related, later comments by the Mother in answer to questions from the Bench:[55]
What if we ask you this – and, again, it’s just a general question – is it your intention, at any stage when [X] reaches whatever appropriate age of understanding he hits, that you would intend telling him anything to do with the allegations that have been levelled against his father or not?‑‑‑No. I would want to have further advice on that. One advice I was given was that I should tell him, and then I’ve received other advices that it may be damaging to hear that. So I don’t want to – you know, there’s no way I would want to – have that affect him. So, yes, I would want to be making sure that whatever I said to – say to him is not going to affect him in any way.
[55] T 134.
The Mother confirmed that the only way she could see any “co-parenting” relationship with the Father was through supervised time.[56]
[56] T 134.
I have to say that, accepting the Mother’s fragility, I was and remain highly concerned about what seemed to be her significant inability to seek more thorough-going care and assistance in dealing with the parenting issues now before the Court, including facing the reality (or at least the prospect) that [X] was/is very likely to be spending time with his Father. Indeed, in response to questions from the ICL, the Family Consultant agreed that the Mother was likely to require “professional help.”[57]
[57] T 75.
Equally concerning was/is the Mother’s inability to think strategically (for want of a better word) about her own well-being in the event of the Court making certain parenting Orders, and likewise about strategies in dealing with the Father in the future in relation to time-with arrangements for the child. She may well, of course, have taken the view that she would confront those things once the Court had made its decision. But that was not her thinking. And finally, I was and remain concerned that the Mother would think that supervised time until the child was 16 years old was in [X]’s best interest.
The Report of the Family Consultant
The observations of Ms S of the interaction between [X] and his Father, together with the sections entitled “Assessment” and “Conclusions and Recommendations”, from her Report, dated 19th July 2016 (Exhibit B), were as follows (emphasis added):[58]
[58] In setting out only these sections of the Report, I do not suggest or indicate that I have not had regard to the earlier sections of it, notably Ms S’s interviews with both parties and with the Mother’s older children. In the latter instance, it is generally fair to say that the older children gave a quite negative picture of Mr Featherstone.
[X], in the brief opportunity I had to observe him, gave every indication of being a highly intelligent, polite, well-adjusted child who had only just turned four. He appeared physically healthy and emotionally mature. At one point some remark prompted him to tell me he liked the (omitted) on television. “I was watching and there was a shark”, he volunteered, confiding, “Sharks are only a bit scary. They eat pterodactyls”. He acknowledged Mr Featherstone’s arrival in a friendly manner and seemed keen to explore the box of toys provided. As he and Mr Featherstone played with a train-set, involving assembling sections of the railway track, hooking up the engine and carriages, using building blocks to create the station and a bridge, he spoke articulately about what he was doing, using sophisticated language skills. I recall Mr W asking at one point about how he was going to join the engine and the carriages. [X] replied, “They just clip together like this”.
6.24 Mr Featherstone and [X] played alongside one another with Mr Featherstone suggesting how things might be done and in many instances doing it himself without discussion. [X]’s grandfather, who sat in the background observing, would occasionally ask a question that prompted reflection and problem-solving in [X]. While it was a very brief snapshot of the interactions, it appeared that Mr Featherstone’s way of relating to [X], in contrast to Mr W’s, involved the adult telling or showing the child what to do, more than promoting exploration, reflection and discovery. Extrapolating to everyday situations, this style would tend to foster dependence, and reliance on adult feedback, rather than self-reliance and creativity.
6.25 While [X] seemed relaxed and willing to spend this time playing with his father, there was little or no conversation between the two. His focus was on playing with the toys. Mr Featherstone was grateful that we had a box of toys in the office for this purpose, as he had inadvertently left behind the toys he normally brought with him to contact sessions. He explained this to [X] at the outset. [X] clearly was not bothered.
7. Assessment
7.1 I had no doubt that Ms Adey held a genuine belief that Mr Featherstone’s behaviour towards her children had been inappropriate and sexually oriented and that [X] would be at risk if left in the care of Mr Featherstone.
7.2 There are numerous behaviours that might be considered indicators of sexual abuse or grooming which, on the other hand, might be considered innocent in other contexts. The presence of abuse “indicators” does not prove that abuse happened or was bound to happen.
7.3 Mr Featherstone made no secret of the fact that he liked Ms Adey’s children a lot. He described them as “the best kids I’ve ever come across”. He also praised their dad. He criticised their mum for being extremely strict, especially about their music practice, commenting that the children were “militarised”. Some of his questionable behaviour could probably be regarded as a childish attempt to undermine the rules Ms Adey imposed on the children, as well as a desire to be liked by the children. Such things as buying small inexpensive gifts for [A], to add to her collection, and building a “secret compartment” in her wardrobe where she could keep her diary, in different circumstances, might be regarded as foolish but innocent. From Mr Featherstone’s own account of events it appeared that he would sometimes deliberately undermine Ms Adey’s authority, by repeating some behaviour she had asked him to stop, for example putting [A]’s foot in his mouth.
7.4 The three older children, each in their own way, described worrying aspects of Mr Featherstone’s behaviour with [X]. His apparent lack of empathy and his propensity for frightening displays of anger raised questions about his capacity to care for a young child. Such actions as placing [X] in his crib in another room in order to remove the crying while he himself watched television do not suggest a person who is focused on the child’s needs. The older children gave every indication of being sensitive to others’ needs, intelligent, reflective and emotionally mature. I had no reason to doubt their motivation or their credibility. The boys in particular spoke in moderate terms, acknowledging the possibility that they might be over-reacting.
7.5 In the brief time that I had contact with [X], he showed no fear of Mr Featherstone and no sign of any physical or emotional abuse. He seemed a bright, curious, articulate, secure and healthy child. This suggested that the care he had received from his mother and older siblings in the past two years had nurtured him well. Any abuse that he may have experienced in his early life was not evident now. (omitted) observed that [X] used to be rough with others, in the same way that Mr Featherstone was rough to him, but was now very gentle.
7.6 Mr Featherstone’s treatment of [X], as reported by the older children, suggested that he had little or no capacity for empathy, as did his reported treatment of Ms Adey when she had cancer and was undergoing chemotherapy. It appeared that he engaged with the older children in ways that were gratifying to himself, and was unaware of their discomfort. Even after being requested to stop certain behaviours, he continued, in complete disregard for the authority of Ms Adey, the children’s mother.
7.7 The “brilliant” parenting course that Mr Featherstone attended appeared to have given him no understanding of how to comfort a crying child. His engagement with [X] when I was observing did not exhibit curiosity or interest in his child’s life, his intellectual development or his personality.
7.8 Based on my limited observations and my interviews, I could not rule out that Mr Featherstone’s lack of empathy, his self-gratifying behaviour, his intimidating displays of anger could be consistent with the allegations of abuse made against him. One feature that abuse perpetrators have in common is a lack of empathy.
7.9 I formed the view that [X]’s primary emotional attachment was to his mother. Any emotional attachment to his father was not evident in my observations. The limited contact that Mr Featherstone had with him since the parental separation might explain this. However I tend towards the view that the style of engagement, or lack thereof, that Mr Featherstone employed was not conducive to building a close relationship. I did not observe or hear anything from Mr Featherstone suggesting an interest in his son as a person.
7.10 In my view the effect on [X] of separating him from his mother and siblings would be enormously distressing and unsettling. The emotional maturity, fair-mindedness, genuineness and thoughtfulness of the older children was a credit to their parents, and was no doubt a reflection, to some extent, of the parents’ own personal qualities.
7.11 Mr Featherstone expressed concerns about Ms Adey’s mental/emotional health and her capacity as a parent because of this. There was no doubt Ms Adey was suffering from anxiety. However the situation in which she found herself was, in my view, one that would elicit anxiety in most parents. It seemed appropriate that Ms Adey was receiving professional help to deal with her situation. While it is possible that she leapt to unwarranted conclusions about Mr Featherstone, it seemed to me that the reverse was probably true, that is, that she made allowances and gave Mr Featherstone the benefit of the doubt for a long while before she acted to end the relationship, in the interests of her children.
7.12 All I could glean from Mr Featherstone’s attitude to Ms Adey was that he thought she was too strict (“militarised”) with the older children, and that she was too stressed because of going back to work when she was still undergoing chemotherapy. He clearly held Ms Adey responsible for the stress she was suffering and complained that she abused him.
7.13 Ms Adey was now certain that Mr Featherstone was not the “wonderful, romantic guy” that she thought he was at first. She found him to be abusive, deceitful, irresponsible and intimidating. It seemed to me that she was unlikely ever to change her mind about this. Nor was she likely to promote Mr Featherstone as [X]’s dad.
7.14 If Orders were made allowing supervised contact into the future, I thought she would comply. For [X]’s sake, she would need to avoid speaking negatively about Mr Featherstone. When [X] became old enough to make his own decision about having a relationship with him, she would need to be willing to adopt a neutral approach and allow [X] to make his own assessment. Ms Adey might need professional help with some of this.
7.15 I did not discuss her health with Ms Adey, and I noticed no evidence other than the anxiety surrounding the court proceedings. Like any health issues affecting the mother of children, Ms Adey’s health issues could have some impact on her capacity to care for [X] to the standard she would set herself. However the older children were responsible, competent young people, and Ms Adey seemingly had supportive friends and colleagues. Her success in raising the three older children was testimony to her parental capacity. I thought it likely that once the stress of the Court proceedings was over, her state of mind would improve.
8. Conclusions and Recommendations
8.1 In cases where there is uncertainty about the safety of a child, I would recommend erring on the side of caution in making recommendations about contact. This position is of course open to the possibility of injustice to an innocent party.
8.2 In this matter, it appeared that there was little possibility that Ms Adey’s view of Mr Featherstone’s behaviour would change. This fact in itself could pose a problem for [X]’s relationship with his father in the future. I recommend that Ms Adey seek professional advice on how to inform [X] of his father’s identity, and how to explain his current situation, in terms appropriate for a child. If contact is discontinued, [X] should know that when he is older, he would be free to contact his father himself, if he wishes, and that his father would welcome this.
8.3 Supervised contact is a viable option as an intermediate measure to allow an estranged parent to form a relationship with a child, or to allow a parent with limited skills to develop their repertoire. The possibility that abuse may have occurred creates a dilemma as to whether even supervised contact is advisable since the question of when it would be safe to suspend the supervision is difficult to answer.
8.4 Unsupervised contact in this matter would inevitably increase Ms Adey’s anxiety. Furthermore it is difficult to imagine how she could facilitate contact in the reassuring, supportive manner that would be required, given the strength of her conviction about the risk Mr Featherstone poses to [X]. In any event I would recommend that Ms Adey seek professional advice about how to talk to [X] about his father. Revealing the details of her concerns and the allegations would run the risk that [X] might regard himself as having inherited something bad. There is plenty of scope for providing an adequate explanation for the separation that would not harm [X]’s self-concept.
8.5 I formed the view that [X] could have a healthy, rewarding and secure childhood with Ms Adey, without input from his father until he is old enough to seek out contact of his own volition. There are male role models already in his life, Mr B, Mr S, Mr W, and recently his mum’s friend Mr D.
8.6 If ongoing contact were to be considered appropriate, the Court would need to be satisfied that the supervisor understood the responsibilities involved. In that event, assuming competent supervision such as Marymead offers, I would recommend fortnightly contact, on a weekend, either a morning or an afternoon.
The evidence (a) does not support any relevant finding about the Father being responsible for whatever was in the child’s nappy, and (b) that the examination by the GP led to the conclusion that there was no relevant abuse of the child is telling. Accordingly, there can be no finding that there was/is any relevant risk, based on this incident, about the child spending [unsupervised] time with the Father.
Allegation of Sexual Arousal of the Father with the Child: There were a number of different dimensions to this allegation. The central features of it, in a couple of different accounts by the Mother, all centred around the Father becoming sexually aroused when holding or playing with the child, either in bed (but with a sheet separating parent and child, and with the Mother still present), or otherwise. Each account by the Mother involved the Father having an erection with the child present.
The Father’s account invariably (a) denied that he was sexually aroused while with his son, and (b) stated that he always slept naked, and that he commonly had an erection in the morning before going to the bathroom. He also stated that his “noises”, as alleged by the Mother, were him simply playing with the child and attempting to make him giggle (this included him, on one occasion, “blowing bubbles” on the child’s stomach, whereas the Mother said that she saw the Father “blowing” on the child in or near the child’s genital region; the child had on a nappy).
The Mother confirmed that after one or more of these incidents she continued to leave the child with the Father to be looked after while she went to work. In my view, this was a very telling feature of the Mother’s evidence. Giving every allowance for the Mother saying (in my words and in very general terms) that she either could not face what she thought “was going on” at home with the Father, and or that she did not want to believe what she perceived was going on. A parent would/should put the interests of their child first. But in any event, I cannot be remotely satisfied on the evidence regarding the Father’s alleged arousal around the child that there was any relevant risk to [X].
In conclusion, on my assessment of the evidence, having due regard to the Court’s pre-eminent statutory protective responsibility towards [X], and the authorities to which I have referred, I respectfully (and gratefully) adopt the words of Murphy J in Donaghey at [218] – [220] (internal citations omitted), as applicable to the facts and circumstances of the current matter:
[218] … This court deals with people in extremis, and history tells Judges horrifying tales that sick and/or evil parents can do sick and evil things to their children. Findings that a person presents no risk of harm cannot be, and are not, made lightly. Judicial fallibility does not have to be expressly acknowledged to be ever present.
[219] Bearing all of those things in mind, by reason of all of the matters I have discussed, I am as convinced as I can be and with negligible doubt… that the father presents no risk of harm to [the child].
[220] Bearing all of those things in mind, by reason of all of the matters I have discussed, I am as convinced as I can be and with negligible doubt that the father is a loving, caring and committed parent who wants what is best for his son and who, if given the opportunity, will love and nurture him appropriately.
Accordingly, I agree with the ICL’s assessment of the evidence, which (in my view) neither collectively nor individually supports any finding of any relevant risk of the child spending unsupervised time with the Father. Gaucheness and much else, including inappropriate crudity (albeit on one occasion), on the Father’s part does not constitute relevant risk as alleged by the Mother.
Moreover, as indicated on a number of occasions earlier in these reasons, in my view it is important to recall the extremely high state of anxiety that pervades the Mother’s relationship with the Father and necessarily informs her view and perception of any and all actions, past and present, of the Father towards the child. I do not criticise the Mother for her acute anxiety. I remain very concerned for her and her inability to see beyond, or with a degree of perspective, whatever actions she holds against the Father. As previously stated, the Mother needs professional assistance. Hopefully, with that assistance, and the passage of time (as well as the child getting older and more aware generally) the Mother’s anxiety will diminish or be better managed.
It is also of modest relevance (and then mainly for the purposes of context) that, on the Mother’s account, the relationship with the Father was modest, some 2½ years. I mention this simply to observe that, allowing that people change, the Mother presumably was aware from early in her relationship with the Father some or all of the following: (a) the Father’s dyslexia which may account for some difficulty or unusual or different responses (she said in evidence that she did not understand that the Father had difficulties in communicating), (b) his practice to sleep naked and whatever physiological tendency he had to have an erection every morning before going to the bathroom, and (c) his perhaps unorthodox or rambunctious relationship with her older children, which seems to have become something of an issue towards the end of the relationship and after separation.
The Statutory Scaffold/Pathway
Before considering the relevant “considerations” set out in Part VII of the Act in the light of the evidence, it is as well to set out the most basic jurisprudential touchstones in parenting matters, noting that there were significant changes to Part VII in 2012, particularly in relation to the Court’s priority to the exercise of its protective responsibility, pursuant to s.60CC(2)(b) and (2A).
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[90]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[90] Mazorski v Albright (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as it is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[91]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[91] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Against this background of stated principle, I note the following by reference to what I describe as the “legislative scaffold” in Part VII of the Act.[92]
[92] Unless otherwise specified, I will follow sequentially the order of “considerations” in s.60CC(3) without necessarily mentioning each one of them by name.
Given the age of the child, there are no “views” relevantly to consider.
[X] has a good relationship with his Mother (and presumably his siblings), and other members of the Father’s family, such as the maternal Grandfather. Since separation, [X]’s relationship, and certainly his time, with his Father has been attenuated and to a degree compromised because of the lack of time. The Father reasonably appreciates that he needs to build his relationship with [X]. This will take time, attention and sensitivity.
I agree with the ICL’s submission (in relation to s.60CC(3)(c), (ca) and (d) and (e)) that because the child has lived with the Mother (and continues to do so), and has spent relatively little time with the Father:
(i)the Father has generally taken such opportunities he has had to spend time with the child;
(ii)there is no evidence, let alone a suggestion, that the child has not been adequately or properly cared for by the Mother or that she has not “fulfilled her parental obligations”, whereas, in the Father’s case, especially now that he has paid his Child Support obligations, no issue in this regard relevantly arises;
(iii)the child is clearly and obviously bonded with and attached to the Mother; that is not the case with the Father, although there was, in my view, little untoward in the Family Report in relation to the Father’s limited time with [X]. Likewise, the paternal Grandfather’s affidavit (Mr W, earlier referred to) paints a picture of relative relaxation of the time between Father and son, albeit that it was being supervised, in a manner of speaking;
(iv)put in other terms, given that the only issue and Orders relate to [X] re-commencing to spend time with his Father, initially supervised, I do not see (for the purposes of s.60CC(3)(d)) anything negative in this occurring. The child will continue to live with his Mother. He will, over time, spend time with his Father. Indeed, it is likely that it will benefit the child to grow in awareness, confidence and knowledge of his Father and the Father’s family;
(v)given that both parents live in the (omitted) region, I do not see any issues in relation to matters of “practical difficulty”, accepting that, initially, the Father’s time will be supervised at a contact centre in Canberra;
For the purposes of s.60CC(3)(f) and (i), I note the following.
First, I agree with and accept the ICL’s submissions. Secondly, in particular, I agree with the ICL’s submission that the Mother is an intelligent person who has personal and financial resources at her disposal that will enable her, with professional assistance, to cope with and “to move on” from the broken relationship with the Father, and the co-parenting relationship into the future for the purposes of [X]’s ongoing care.
Thirdly, still in relation to the same sub-paragraph, there is some onus now on the Father to ensure that not only does he properly care for and support [X], but equally that he demonstrate appropriate sensitivity towards the Mother. In the course of the trial, he showed varying degrees of insight into the needs of [X], including most significantly, the need to proceed gradually to re-build his relationship with him. Provided he does proceed gradually and not overwhelm [X], and pays due regard to the Mother, I am reasonably confident that, with time, this parenting matter will settle down for the benefit of all, especially [X]. If he could be supported by Ms D, and others (including some general guidance regarding parenting, including from professional sources), this too will assist him considerably. His love for [X] is undoubted, as is the Mother’s. More generally, the Father’s parental capacity is very much a “work in progress” and something that has stalled (for obvious reasons set out at length here) but which now needs to be attended to with purpose and discretion.
For the purposes of sub-paragraph (j), clearly there were times of discord between the parents including when the child was present, albeit that he was very young. Earlier in these reasons I discussed at length the allegation(s) by the Mother of sexual and or other abuse against the Father. For the reasons given, I have found those allegations not established. The Mother confirmed in her evidence that the Father was not physically violent towards her.[93]
[93] There is no family violence Order in place, for the purposes of sub-paragraph (k).
Given the likely embryonic nature of the Father’s relationship with the child, the Court cannot make any predictions (even less than usual) as to the likelihood of any future proceedings. The Orders, made in the light of these reasons, are in the child’s best interests, as prescribed by s.60CA of the Act.
I turn then to two other matters, also prescribed by the Act.
First, in relation to “joint parental responsibility” and the presumption in s.61DA because of (a) the nature of the allegations made against the Father, (b) the child will continue to reside with the Mother, and (c) the very fraught co-parenting relationship, in my view, it is not appropriate for the presumption to operate. It is utterly impractical. That said, while I will make an Order for the Mother to have sole parental responsibility for the child, she is to keep the Father informed of all matters and decisions in relation to the major, long-term issues as defined in s.4 of the Act, regarding the care of the child. Such communication is a matter for the parties but in the first instance, I would suggest that it be only by e-mail (with no discussion between or comment on the decisions by the Father).
Secondly, because the Orders do not provide for any shared or equal time arrangement, nor any “substantial and significant time” between Father and son, but rather a very gradual re-introduction, s.65DAA does not come into play.
In sum: the child’s relationship with the Father needs to be re-built. This will take time and effort, and above all, as earlier stated, sensitivity, on all sides. It will very likely need professional assistance for both parents, albeit of different kinds. It will also need the families on both sides to support each parent. As always, the focus needs to be on the best interests of [X]. As noted at the commencement of these reasons, the Orders the Court now makes, which are taken in large measure but with some amendment from those proposed by the ICL, are, in my view, in the child’s best interests.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 29 March 2018
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