GALDES & HOLDING

[2013] FamCA 519

FAMILY COURT OF AUSTRALIA

GALDES & HOLDING [2013] FamCA 519

FAMILY LAW – CHILDREN – Best interests of the child - Allegations of sexual abuse of the child by the father – Whether the evidence supports a finding of “unacceptable risk” – What time the father should spend with the child in the event of no finding of “unacceptable risk” – Where the father has only spent limited supervised time with the child recently – Whether, if no finding of “unacceptable risk is made, the father’s time should progress to unsupervised time and/or overnight time – Where there are practical difficulties in respect of the father’s time due to geographical difficulties - Whether the parties should be conferred with equal shared parental responsibility – Where the parties have a lack of communication – Where the mother has a firmly held belief that sexual abuse has occurred – Where the mother seeks sole parental responsibility

Briginshaw v Briginshaw (1938) 60 CLR 336
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
KN and Child Representative & NN and JN (2006) 35 Fam LR 518; [2006] FamCA 611
M v M (1998) 166 CLR 69
Mazorski & Albright  (2007) Fam LR 518; [2007] FamCA 520
Rice & Asplund (1979) FLC 90-725

Family Law Act 1975 (Cth)

APPLICANT: Mr Galdes

RESPONDENT: Ms Holding

INDEPENDENT CHILDREN’S LAWYER: Ms Ryan

FILE NUMBER: PAC 2638 of 2011

DATE DELIVERED: 12 April 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 8, 9 and 10 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Friedlander

SOLICITOR FOR THE APPLICANT: Gonzalez & Co

COUNSEL FOR THE RESPONDENT: Ms Paraska

SOLICITOR FOR THE RESPONDENT: Mr Leung
Mahony Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ryan

Legal Aid NSW, Parramatta Family Law

Orders

1. That I discharge all existing parenting Orders in respect of the child B born … 2009.

2. That the parties shall sign all documents and do all things necessary to have the father registered upon the child’s birth certificate as her father.

3. That the mother shall have sole parental responsibility for the child.

4. That, notwithstanding the order for sole parental responsibility, the mother shall advise the father upon her making decisions affecting the long term care and welfare of the child, including, but not limited to, decisions of education, religious upbringing and the child’s health.

5. That the child live with the mother.

6. That until 6 July 2013, the father shall spend time with the child at the E Town Children’s Contact Centre in a supervised situation for a period of two (2) hours, or such time that can be afforded by the centre but not exceeding three (3) hours on each alternate weekend, or on such a day or days as can be allocated by the centre.

7. That the paternal grandmother Ms C and the father’s partner Ms D shall be permitted to attend the visits at the centre provided that does not offend against any rule or requirement of the centre.

8. That from 6 July 2013 onwards and until 31 August 2013, the father shall spend time with the child from 10.00 am until 12.00 noon each alternate Sunday, commencing on 7 July 2013. Such visits shall take place in the E Town area.

9. That from Sunday 1 September 2013 until 9 October 2013, the father shall spend time with the child from 10.00 am to 2.00 pm each alternate Sunday. Such visits shall take place in the E Town area.

10. Thereafter and commencing on 27 October 2013, the father shall spend time with the child from 9.00 am until 5.00 pm each alternate Sunday. Such visits shall take place in the E Town area.

11. That commencing in 2014, in the holidays falling between first and second, second and third and third and fourth terms in each year the father shall spend time with the child for four (4) consecutive days commencing from 9.00 am until 5.00 pm each day from the middle Saturday of each school holiday period.

12. That the father’s holiday time between first and second and third and fourth term shall be spent at E Town, and the holiday time between second and third terms shall be spent in Sydney.

13. That commencing in 2014, during the January/December Christmas holidays, the father shall spend time with the child on two (2) separate periods of three (3) consecutive days each from 9.00 am until 5.00 pm each day. Such periods to commence on the second and fifth Saturdays falling within that period. Such periods of time shall be spent in Sydney area.

14. That the father shall spend time with the child at any other time as may be agreed between the parties and evidenced in writing.

15. That to facilitate orders for the father to spend time with the child in E Town, the father shall collect the child from the E Town Children’s Contact Centre at the commencement of such time and shall return the child to the centre at the conclusion of such time.

16. That to facilitate orders for the father to spend time with the child in Sydney, the father shall collect the child from the F Contact Service at the commencement of such periods and shall return the child to that centre at the conclusion of such periods.

17. That the father’s time shall be suspended on Mother’s Day in each year and the father shall spend time with the child on the Sunday immediately following Mother’s Day in each year from 9.00 am until 5.00 pm commencing in 2014.

18. That in the event that the child is not for any reason able or available to spend time with the father on any of the occasions specified due to illness or for any other appropriate cause, the mother shall provide the father firstly with notice that such visit will not occur, and secondly will provide to the father within seven (7) days of the date upon which time should have occurred, a medical certificate setting out the medical reason for the child not attending. Should the reason be other than for a medical reason then the mother shall specify that reason to the father. In the event that time does not occur as hereinbefore contemplated, the parties shall arrange for the father to spend a period of time equivalent to the time lost within three (3) weeks from the date upon which time should have occurred.

19. That the parties shall within fourteen (14) days of the making of these Orders, contact the F Contact Service and shall thereafter do all things and execute all documents necessary to participate in an intake assessment with the centre for the purpose of the centre providing changeovers in a supervised situation when time is to occur in Sydney.

20. That each party is restrained from denigrating the other parent in the hearing or presence of the child.

21. That each party is restrained from causing, permitting or allowing any other person to do so, that is, to denigrate the other parent in the hearing or presence of the child.

22. That each party shall forthwith advise the other of their residential address and mobile telephone contact number. In the case of the mother, the mother shall not move from her presence address as notified without giving twenty-eight (28) days notice to the father of her intention to move, and specifying with some precision, the address, and if not that the area, to which she proposes to move. The father shall keep his address notified and current and in the event of any change shall notify the mother of that change within forty-eight (48) hours of it occurring.

23. The father is by way of injunction restrained from approaching within 500 metres of the mother’s residence from time to time.

24. That each parent shall be entitled to obtain information directly from the child’s day care, preschool or school in relation to her educational progress, including, but not limited to, the obtaining of school reports and school photographs.

25. That each party shall be at liberty to attend any day care, preschool or school event involving the child to which parents are ordinarily invited. On such occasion, the parties shall, should they need to deal with each other, deal with each other in a civilised and appropriate fashion.

26. That a copy of these orders may be produced to child’s day care, preschool or school to establish the entitlements of each of the parties.

27. That in event the child suffers from a serious illness, injury or is hospitalised, the parent who is caring for the child at the time of the event shall notify the other as soon as is reasonably practical.

28. That each parent shall be at liberty to obtain information in relation to the child’s health in a general sense or arising from the notification of any serious illness or injury. That information may be obtained from any treating doctor or specialist at any time.

29. That a copy of these orders may be produced to such doctor or specialist to establish the entitlement of each party pursuant to these orders.

30. That if the mother enrols or proposes to enrol the child in counselling, the father is to be informed of such situation. The father shall thereafter be entitled to contact the counsellor or therapist. Further, should the counsellor or therapist consider it appropriate, the father shall be entitled to participate in such counselling or therapy.

31. That I otherwise note that no application has been made by the Independent Children’s Lawyer for costs against either party.

32. That I dismiss all outstanding applications and cross-applications.

33. That I remove all issues from the Active Pending Cases List.

34. That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galdes & Holding has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2638 of 2011

Mr Galdes

Applicant Father

And

Ms Holding

Respondent Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns the future living arrangements for the parties’ only child, B, who was born in 2009.  The child presently resides with her mother in the E Town area.  The father has been spending time with the child, pursuant to interim Orders, at a contact centre in E Town.  The father agrees that the child should remain living with the mother.

2. The parties, however, remain in dispute as to parental responsibility.  The father seeks equal shared parental responsibility and the mother seeks to have sole parental responsibility allocated to her.  Further, there is a dispute as to the time the father should spend with the child.  In this regard, he seeks that any orders that I make should include overnight time.  The mother and the Independent Children’s Lawyer say that time should not progress to overnight time as a result or in consequence of my orders.  The mother also requires that time be supervised.  In this regard, she relies upon allegations of sexual abuse or the likelihood of sexual abuse that she raises against the father.  This is the basis, as I understand it, of her concern in respect of the father having overnight time with the child.  I will endeavour to deal with those allegations later in these reasons for Judgment.

Brief history

1. A brief history of the matter is as follows:-

   ·    The father was born in 1975 and the mother in 1983. 

   ·    The parties commenced cohabitation in about March 2005 after they had started a relationship several months earlier.  The relationship between the parties was an on and off relationship.

   ·    The subject child was in 2009. 

   ·    The parties appear to have separated on a final basis in about mid 2010 with the mother asserting that it was in March and the father asserting that it was in June.

The parties’ documents

1. The parties have filed and relied upon a number of documents.

2. The Applicant Father relied upon his Initiating Application filed on 14 June 2011, and I pause here to say I do not propose to set that application out in full.  He then relied upon an affidavit of himself, sworn 11 January 2013 and e-filed that same day, and an affidavit of Ms C, his mother, sworn 11 January 2013 and e‑filed the same day.

3. There was difficulty in the father’s case in that he sought to put before the Court his present partner by means of some form of telephone or other appearance at Court, absent any affidavit being filed by her.  In the end result, his partner did not give evidence in any form.

4. The Respondent Mother relied upon her Response filed 24 October 2011.  Again, I do not propose to set that document out in full.  She relied upon her affidavit, affirmed and e-filed on 9 January 2013, and the affidavit of her mother, Ms G, sworn and e-filed also on 9 January 2013.

5. In addition, there was in evidence before me a detailed and comprehensive report of Ms H, psychologist, which was attached to his affidavit, sworn 21 May 2012, and a Family Report prepared by Family Consultant, Ms I, which was released to the parties on 27 September 2012.

6. The mother and the Independent Children’s Lawyer each tendered a series of documents.  These were both of a considerable volume and can be found by reference to the exhibit sheet in this matter.

The hearing before me

1. There is little factual dispute between the parties, save and except in respect of the allegations that the mother makes concerning abuse, or potential abuse, on the part of the father.  It seems to me, then, that I am able to set out what appears to be a comprehensive history of the matter, which is of assistance.

2. Prior to the parties commencing a relationship, and in about 2000, the father says he ceased taking illicit drugs following his participation in a residential program.  However, in about 2002, he relapsed and overdosed.  There is then some little dispute, but nothing of consequence, concerning the amount of time he spent in hospital and rehabilitation.  An important part of the father’s case is that he suffered frontal lobe damage as a result of the overdose, and that has affected his short-term memory.  Mr H’s report indicates that this is confirmed on testing.

3. As I say, the parties commenced a relationship, it would appear, in about March 2005.  Each party makes allegations against the other during the course of their relationship, although again nothing, to my mind, is of great significance.  There was an episode in 2006 where – in a situation which appears to be, of itself, non-contentious – the actions of the mother resulted in a small puppy being crushed and killed.  The significance of that situation is the mother’s reaction to that episode.  Mr H finds that her reaction to this event, and her presentation at a hospital thereafter, is something that caused him significant concern.  The mother denies that she was affected by alcohol at that time.  The father has no direct knowledge of the episode and reports what he has been told.

4. In 2007, the mother makes an allegation of the father throwing a can of alcohol at a wall and then grabbing her around the neck.  That episode is denied by the father.

5. Another matter that causes concern, but not of a factual nature, is the situation where the mother says that she said to the father that she was pregnant and the father said, “It’s not mine.”  The parties both agree that that was what was said.  However, the father seeks to put a more innocent or less offensive spin upon what was said by saying he thought she was joking when she declared she was pregnant so he joked back by saying, “It’s not mine.”  Initially, he had made some denial about saying this but later, as I say, took the line that what was said was said in jest.

6. It is clear that in April 2009, the parties’ only child was born.  There was then a final separation and leading up to that, there was the situation where the mother makes allegations that she had seen the father sustain an erection when he had the child sitting on his leg or lap and was working on a computer.  The father concedes that he had the child on his lap, but he could not recall whether he had an erection.  The mother says there were three occasions where she had observed an erection.  The father concedes two.  That is a matter that I will have to determine.  The mother also alleges the father was kissing and stroking the child’s face in a manner that he employed with her as foreplay.

7. On 25 April 2010, the mother specifically speaks of the father having an erection when the child walked from his legs to his chest when he was lying on his back.  In that situation, the father admits to having an erection, but says it was caused, not by any sexual or psychosexual factors, but because the child had slipped and applied pressure to his penis and it became erect.

8. There is a further allegation, in May 2010, that the father displayed sexual interest in the child.  This is denied by the father.

9. In June 2010, the mother made a report to a doctor of an episode where she said the father had taken the child from her home and had returned the child later very red in her vaginal and anal area.  The mother, however, seems to have done nothing at the time concerning this alleged observation.

10. The child, she says, at the time of this episode was some four months old and that would indicate to me it was sometime around August 2009.  The reports made by the mother were much later than that.  Indeed, the mother says she only recalled the incident after the commencement of these proceedings, in about October 2011.  She says she reported the redness episode to the Doctor in early October 2011 and then to the Department of Family and Community Services in late October 2011.

11. There is no doubt that on Christmas Eve 2010, the father spent an afternoon with the mother and the child, and they then spent Christmas Day together.  On 26 December 2010, the mother left Sydney, telling the father she would be gone for a short time and she then, effectively, disappeared.

12. The mother was subsequently found by means of a Commonwealth Information Order.

13. On 17 January 2011, the mother made a report to police about the father’s alleged threatening behaviour towards her.  There were then a significant series of Orders made in this Court leading up to an interim Order being made on 31 May 2012.  On that day, Johnston J made interim Orders by consent for the father to spend interim time with the child at a contact centre in E Town.

14. The evidence satisfies me that the father has, on all occasions available to him, attended for such time with the child.  It is clear that on the last occasion prior to the hearing date the father did not spend time with the child because the mother cancelled time at the contact centre and did not make the child available because she said she had to come to Sydney to see her barrister.  The significance of that is not so much that she came to Sydney but that she appeared to make no effort to notify the father that the child would not be available in E Town for him to spend time with her.

The mother’s case

1. I will deal with the mother’s case first because it is the mother that puts forward the allegations that give rise to her claims that the father’s time with the child should be supervised and should not be overnight.  She relied upon the separate incidents I have endeavoured to explain so far; those incidents being what she says were the three observations of the father obtaining an erection and the episode of redness.  She asserts that that which she observed establishes that he had acted in a sexually inappropriate manner towards the child.  She said that, further, the parties could not communicate, and for this reason, equal shared parental responsibility between the parties would be unworkable.

2. She suggested, through her counsel, that both parties should receive counselling for difficulties they have each experienced and which I will return to shortly in these reasons for Judgment.  The mother did not rely upon the fact that the father was a sufferer of Hepatitis C.  This, as I understand it, was not part of her case and, indeed, as I read the material, there was no reference made to the father’s positive status in either of the parties’ affidavits or the affidavits of their respective mothers.  So far as I am concerned, the only reference made in any document in this regard is to be found in the subpoenaed material.

The father’s case

1. The father conceded that he had sustained an erection on two of the occasions that the mother nominates.  He asserts there was no sexual arousal involved in either of those episodes.  He denies that he did anything to cause the child’s vaginal and anal regions to be red as the mother asserts she observed.

2. It is his case that he and the mother should have equal shared parental responsibility, and that his time with his daughter should progress gradually to overnight and unsupervised time.

The Independent Children’s Lawyer’s case

1. The Independent Children’s Lawyer, in submissions, produced a minute of proposed orders.  The proposal was that the mother should have sole parental responsibility and the father should have time, after a short period, unsupervised but not overnight.  The Independent Children’s Lawyer’s minute contained further orders to enable time to occur and for other purposes.  The mother adopted the Independent Children’s Lawyer’s minute.  The father adopted some, but certainly not at all, of the orders proposed by the Independent Children’s Lawyer.

The allegations of sexual abuse

1. As I have said, much of this case turned on the allegations that the father had sexually abused the child, or his behaviour had demonstrated a likelihood or propensity that he would do so.

2. The mother’s evidence and her presentation caused me considerable concern.  She relies upon what she describes as three episodes when she observed the father in proximity to the child whilst he had an erection.  She does not appear, as her evidence stands, to assert there was any overt act of the father that caused her concern, save that she says that she observed him stroking the child’s face and kissing her in a manner which she perceived to be inappropriate.  There is no evidence before me that on any of those occasions – that is, the two occasions where the father admits that he obtained an erection – that he made any attempt to, in any way, obtain sexual gratification or involve himself in any form of improper conduct with the child.

3. The mother has not persuaded me, on the evidence before me, that the father’s erections were for any sexual or psychosexual purpose.  I am not satisfied, on the evidence before me, that the father’s erections were to obtain any sexual gratification.  It is, perhaps, unfortunate that the incidents occurred.  However, I am satisfied that the mother, for whatever reason, is hyper-vigilant and seeing what occurred, has, in her own mind, promoted it to a clear indication that the father has acted inappropriately and sexually towards their daughter.

4. So far as the redness episode is concerned, when the father returned the child on the day in question, the mother says that the child was extremely red in the genital area.  However, it is to be remembered that she did not make this assertion, that is, that something untoward had happened, until much later.  The mother, as I understand it, said that this was because, in hindsight, it suddenly fell into place in light of the erection episodes and was proof of abuse by the father.  One of the difficulties in accepting this evidence, as I have said, is the timing of reports.  The mother says that the episode occurred in August 2009 or thereabouts, and in any event, when the child was about a four month old baby.

5. She did not report her observations of the redness on that occasion to her doctor until June 2010, and then again in early October 2011.  She did not report the matter to the Department of Family and Community Services until late October 2011.  It was her evidence that the erection episodes were in March 2010 and April 2010, being the episodes which the father concedes, and in early May 2010, the third episode that the father denies.  She said she had seen her doctor in June 2010.  As I have said, it took a while for the redness episode to come into focus for her.  There is a note by her doctor dated 8 October 2011, which became Exhibit C in these proceedings, referring to a report of the three erection episodes, and which speaks of being informed of these matters in June.  There is a letter, which became Exhibit F, dated 9 January 2012 in which reference was made to an observation of a small “flap” of skin.  Some questions were asked concerning that, but that matter does not appear to have assumed any greater significance so as to be relied upon to establish any sexual activity.

6. The mother’s evidence of what she observed certainly seems to evolve with the passage of time.  I am satisfied that there is a note of a report to the Department of Family and Community Services of 2 September 2010 involving an erection episode.  There was no action taken on that report to the Department of Family and Community Services and the matter has been closed.

7. It is significant, on a reading of the Department’s material, that the mother made a report on 27 October 2011 of redness and, on that occasion, mentioned a Court date on 4 November 2011.  The time she has taken to make this report causes me concern.  I am of the view that the redness report, as I will call it, arises purely out of reconstruction by the mother.  She has, I am satisfied, looked at anything that she could rely upon to support her view of sexual abuse by the father.

8. I am concerned that not only did the maternal grandmother not report, but the doctor, who has provided two letters which became exhibits in these proceedings, having had reported to him these matters which, having regard to the tone of his letter he accepts, also did not make a report to the Department.  Clearly, he was at all times a mandatory reporter.

9. There are other aspects of the mother’s evidence that are of concern.  She gave evidence in some detail of moneys that she had given to the father during periods of time because he insisted she do so.  The figures that she gives in respect of this are, to my mind, inherently unbelievable.  I am satisfied that this is a further attempt by her to paint the father in the worst possible light. 

10. Overall, so far as the mother’s evidence is concerned, I am satisfied I can accept the conclusions of Mr H as to the wife’s belief and state of mind.  I am particularly assisted in this regard by the material he sets out in his report from page 28 onwards.  I do not propose to read that onto the record in its entirety, but it will be noted that Mr H expressed his concerns that the mother has underlying conditions which make her more likely to accept that what she saw was, indeed, something of a sexual nature.  Mr H says this in respect of the mother’s mental health:-

    While I am not in a position to diagnose the mother’s mental health, evidence has been put before the Court that multiple diagnoses have been made in relation to her in the past.  These include depression, anxiety disorder, and panic attacks, obsessive compulsive disorder and phobia.  Each of these disorders predisposes the sufferer to perceive events and feelings in a more exaggerated manner than those who do not suffer mental disorders.

11. The mother told us in her evidence that she had, indeed, been seeing a psychiatrist but that had ceased because funding had been stopped.  There was no attempt to put before me any reports from that treating person to indicate to me the extent and state of the mother’s mental difficulties.  Accordingly, I am satisfied that the mother has, for whatever reason – and I attribute it to the reasons described by Mr H – been unable to differentiate between fact and fear and has, accordingly, come to the conclusion, willingly or unwillingly, that there has been inappropriate sexual behaviour by the father.

12. The father gave evidence as to the allegations of the mother.  As I have said, he admitted that on two occasions whilst in physical contact with the child, his penis became erect.  His assertion is that it was the touching by the child of his genital area that caused his penis to become erect.  The mother says that the erection must have had some sexual or psychological cause.  He denies this.  I accept the father’s denial that a third episode, as alleged against him by the mother, never occurred.

13. I must resolve the issue of whether or not sexual abuse has occurred or whether there is an unacceptable risk of sexual abuse.  In the High Court case of M v M[1], their Honours found that:-

    In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw ...     

    In more generalised terms, that is, the more serious the allegation, the higher the standard of proof.  Their Honours went on to find that:-

    ... it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction ...

    Their Honours further stated that:-

    ... the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child.             

    [1] (1998) 166 CLR 69

14. In this case, I am satisfied that the evidence before me fails to reach the required standard of proof that there has been sexual abuse.  Indeed, I record that I would not be satisfied to the bare civil standard – that is, without applying the rider of the Briginshaw[2] test – that the case against the father of sexual abuse has been made out.  However, their Honours went on to say that the Court should not grant an order if it would expose the child to an unacceptable risk of sexual abuse.

    [2] Briginshaw v Briginshaw (1938) 60 CLR 336

15. In the reported decision of KN and Child Representative & NN and JN[3], their Honours of the Full Court of the Family Court of Australia cited the following passage at paragraph 92 with approval:-

    If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question.

    Their Honours further cited with approval the following passage:-

    This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.

    [3] (2006) 35 Fam LR 518; [2006] FamCA 611

16. I must examine the evidence in this matter with care.  The evidence before me establishes that the father gained an erection on two occasions.  The mother gave evidence of the father kissing and stroking the child in what she considered to be an inappropriate manner.  She further gave evidence that she had observed redness in the child’s genital area.  I have found that the redness episode was a matter that played a significant part in the mother forming the view of abuse.  The late reporting of the matters is of significance.  Further, the mother, in my view, has clearly reconstructed material and viewed it with the benefit of hindsight. 

17. I am thus satisfied that there exists no unacceptable risk to the child of spending time with her father in appropriate circumstances.

18. Those appropriate circumstances, I make it clear, do not refer to any need to protect in respect of sexual abuse.  I record here that I am, however, satisfied that the mother has formed an unshakeable belief that abuse has occurred for the reasons attributed by Mr H to her predisposition to just such a position.  I am satisfied that she genuinely, but mistakenly, believes that her daughter was sexually abused by the father.

The reminder of the evidence before me

1. I am satisfied that both parties were at pains to put their case at its highest and the other party’s case in the worst possible light.

2. A difficulty in the father’s case was his failure to put his present partner before the Court in a timely and proper fashion.  This was a serious omission in his case and one which left me unable to form any impression of his partner’s suitability to be involved in the father’s time with the subject child.

3. The father did not provide any medical evidence as to the brain damage that he had sustained as a result of his drug overdose or a medical prognosis and diagnosis of its effect upon him.  There is no doubt that his short-term memory is affected, and I must concede that I was initially concerned as to the effect that this would have upon his capacity to care for the child.  However, I am satisfied that he has learnt to take some appropriate actions – such as the use of notes, and particularly, his mobile telephone – to put in place reminders for himself to deal with matters as they arise.

4. He adduced no evidence as to his Hepatitis C status, but I am satisfied that is no longer, or never was, an issue.  Having said that, it was of concern that there was no medical evidence as to the trial of medication he was enrolled in respect of that condition, but subsequently ceased to participate in, following his partner becoming pregnant.

5. I was concerned that the father certainly appeared to have no appreciation of what the travel between E Town and Sydney would mean so far as the child was concerned, and that he seemed to make light of this to the point of being dismissive.  I was also concerned that he has not endeavoured to provide any support for the child.  Having said that, it must be remembered that the mother has not chosen to take steps that are open to her in respect of the Child Support Agency.

6. However, the father is not excused from his responsibilities to provide financial support for his child because the mother has done nothing.  I am satisfied he could have taken action and, indeed, he said that he had spoken with the Child Support Agency, but they had not made it clear to him that he could make an application for an assessment.  Failing an assessment, it was always open to the father to make some direct arrangement with the mother to make payments available to her for their child.

7. One of the issues that was raised is whether or not the father’s name should be on the child’s birth certificate.  It appears now to be common ground that this should be so.

8. Initially, the father seemed to be saying that he sought a name change for the child, as I heard his evidence, suggesting at one point there might be some form of hyphenated or inserted name.  However, I am satisfied that by the conclusion of the proceedings, and certainly submissions, all he sought in this regard was to have his name on the birth certificate.  I will order accordingly and, of course, now that the father is named on the birth certificate, the mother’s way to making an application to the Child Support Agency is clear.

9. I was also concerned and did not accept the father’s evidence that when the mother said she was pregnant, he thought she was joking and made an offhanded reply, “It’s not mine.”  I am satisfied that he did say that at the time.  That, however, does not mean that he has not since that time developed in his role as a father, albeit a separated father, in respect of the parties’ child.  Going to E Town, as he has done for limited and supervised periods of time at a contact centre, to my mind, has established his bona fides in this regard. 

10. I am satisfied that the parties’ mothers respectively, in giving evidence, endeavoured to assist their child in the presentation of that party’s case.  Overall, I found their evidence of little assistance to me.  I am, however, concerned at the evidence of the maternal grandmother, a trained nurse, who, on having had revealed to her certainly the allegation of the observed redness, did not make any report to appropriate authorities.  She is, she conceded to me, a mandatory reporter.  She was not able to explain why she had not fulfilled that duty in respect of her own grandchild.

11. Notwithstanding that, I am satisfied that the maternal grandmother can offer accommodation to the mother in her home in Sydney should any part of my orders require her, that is, the mother, to come to Sydney.

12. So far as the paternal grandmother is concerned, whilst her evidence was of no great assistance to me, I was concerned that when a question initially was put to her as to whether her son suffered from any ongoing medical condition, she made no mention of Hepatitis C, and when it was specifically put to her that her son did suffer from Hepatitis C, she tried, in my view, to pass it off very lightly.  Her failure to answer initially was a matter of concern to me, not because of the father’s Hepatitis C status, but because her answer was untruthful.

13. The report in evidence of Family Consultant Ms I, I found helpful.  Her evidence as to why there should not be overnight time with the father for the foreseeable future was cogent and compelling, and a matter I take into account.

14. That concludes my overview of the evidence of the parties and their witnesses.  I turn then to the law to be applied.

The law to be applied & Discussion

1. The starting point is section 60CC of the Family Law Act 1975 (Cth) (“the Act”), which deals with the primary considerations. They are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents, and (b) the need to protect the child from any physical or psychological harm, from being exposed to abuse, neglect or family violence.

2. So far as the concept of “meaningful relationship” is concerned, there are a number of decisions that deal with this issue.  I refer to the decision of Brown J in Mazorski & Albright[4] at paragraph 26:

   ... 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.

   [4] (2007) 37 Fam LR 518, [2007] FamCA 520

3. Following that decision, there have been a number of decisions as to what is to be met.  Kay J sitting in the Appellate Division, said at paragraph 33 of Godfrey & Sanders[5]:-

   The Act sets out in s 60CC several matters for the Court to consider ... the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.

   Later, his Honour said, in respect of a proposed relocation, at paragraph 36:-

   Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

   I note, without endeavouring to define meaningful relationship, that the distinction was drawn between an optimal relationship and a meaningful one.

   [5] [2007] FamCA 102

4. I am satisfied that the Full Court has found that the preferred approach is a prospective one, that is, looking to the future.

5. How will a relationship with the father benefit the child?  The mother herself, as I understand it, makes it clear that the child should have a relationship with the father provided the child is properly protected.  So far as the need to protect is concerned, I have dealt with the sexual abuse allegations.  I need not repeat my findings here.  I am not of the view that the child needs to be protected by any orders that I would make against the prospect or fear of sexual abuse at the hands of the father.

6. I turn then to the further considerations that the Act sets out (section 60CC(3)).

7. The first of those additional considerations are any views expressed by the child (subparagraph (a)).  The child is too young to express a view in an oral or verbal sense.  The best I can rely on here are the notes subpoenaed from the E Town Contact Centre.  Those notes indicate, on occasions, that the child has been observed to be comfortable and relaxed with the father.

1. There is no doubt, however, that the child has, from time to time, said things to the father which are causes for concern.  I will deal with those here, rather than under some other subsection.  The child has called the father “yucky”.  The child has said she will not see the father again.  The child has said the father “is going to gaol”.  I am satisfied that calling her father “yucky” may be age appropriate.

2. However, I am not satisfied that her comments about “not seeing you again” or “going to gaol” are age appropriate.  The “not seeing you again” occurred on the occasion immediately prior to the mother unilaterally cancelling the father’s time with the child, effectively by coming to Sydney.  “Going to gaol” is not, to my mind, a comment that would normally be expected to be made by a child of this age.  This means, in my view, that the child’s observed conduct with the father – that is, she appeared relaxed and comfortable on most occasions – should outweigh any of her verbal comments to the father that might be seen to be indicating her desire not to spend time with him.  I am satisfied that what has been observed of the child is such that I can be satisfied that she is, for the most part, comfortable with her father.

3. As to the nature of the relationship of the child with each parent (subparagraph (b)), it is clear that the child has lived the whole of her life with her mother, and that she has a relationship with her mother which is dependent and one which gives her comfort and love.  I am satisfied that her relationship with the father is an evolving one.  There is no doubt, for a period of the time, the father did not see the child on any regular basis.  However, as I have already made mention, it appears to me that he has demonstrated a commitment to the child by travelling to E Town for the periods of time he has spent with the child.  I am, accordingly, able to find that his relationship with the child is, in all the circumstances, appropriate and if he spends further time with the child, it will improve.

4. Subparagraph (c) deals with the willingness and ability of each of the child’s parents to facilitate a close and continuing relationship between the child and the child’s parents.  The mother fails badly under this consideration.  Notwithstanding her protestations that that which she did was, in effect, required because of the father’s sexual abuse and violence towards her, I find that her actions in removing herself and the child by deception were such that they indicated to me that when she did that, she had a clear intention that the father would spend little, if no, time in the child’s future life.  I am not able to make any similar finding in respect of the father.

5. I accept that the mother is now telling me the truth when she says the father should play a part in the child’s life.  However, I am satisfied that she also seeks to impose very significant restrictions on that relationship.

6. The likely effect of any change in the child’s circumstances (subparagraph (d)) is something of concern.  It is the father’s case that there should be put in place, almost immediately, a situation whereby he gains both overnight and unsupervised time with the child.  That, to my mind, is an excessive proposition.  I am satisfied that the relationship between father and child, as I have said, is developing.  I am satisfied it should be allowed to develop slowly, rather than with the immediacy and urgency that the father proposes.

7. I am also satisfied that the likely effect of any change in the child’s circumstances must heighten the mother’s concerns, albeit her concerns, in my view, are not soundly based.  I am satisfied that in that situation, there would be an effect on the mother’s parenting of the child, which would, in turn, adversely effect the child.

8. As to the practical difficulty in respect of the time spent with either parent (subparagraph (e)), there is a considerable distance between the parties situate in E Town and Sydney respectively.  I would estimate, doing the best I can, it is between five and a half and six hours of travelling by car.  I am also conscious of the fact that the mother does not drive and would travel with the child by train if she was required to bring the child to Sydney.  I am satisfied that that presents real practical difficulties.  I am satisfied that there is far less difficulty in the father travelling from Sydney to E Town to spend time with the child, whether that be time at a contact centre or elsewhere.

9. Certainly, he has given evidence – if I might say very late in the piece and of a less than adequate nature – that he now has people in E Town with whom he can stay.  He can use their home as a base if he is to spend time with the child in E Town away from the contact centre.  I note that I was told this, effectively, at the very last opportunity in these proceedings, and neither of the persons referred to were, in any way, made available for cross-examination.  Nor were they on affidavit.

10. I turn to the capacity of each of the child’s parents to provide for the needs of the child (subparagraph (f)).  I am satisfied that the mother has cared for the child’s day‑to‑day needs in a proper fashion.  She has been able to house, feed and clothe the child and attend to the child’s elementary educational needs.  I am satisfied that her capacity to deal with the child’s emotional needs, however, is compromised by her unshakeable belief that the father has done something untoward so far as the child is concerned.

11. I am satisfied that the father has a capacity to provide for the child whilst she is with him, and I accept that to date that has only been at a contact centre.  I am satisfied that if he is allowed to have the child away from the contact centre, he will be able to meet the child’s needs for a period of time.  At this stage, I am not able to be satisfied that his capacity extends to caring for the child overnight.

12. I take into account the fact that the mother asserts that the child is Aboriginal (subparagraph (h)).  I did not hear anything further than that bare assertion.  I was not told if there were any cultural activities or matters that needed to be attended to in respect of this child’s cultural heritage.  The matter was not expanded upon any further. I certainly do not mean, in any way, to be derogatory, but I say that in this case, notwithstanding that it was raised by the mother, the child’s Aboriginality has not been the subject of any evidence or material placed before me that means I need consider it in any significant way.

13. As to the attitudes towards the child and the responsibilities of parenthood (subparagraph (i)), I am satisfied that the mother sees a need to protect the child.  I am satisfied that, to a very large extent, her views in this regard are determined and heightened by the factors referred to by Mr H.  I am sure that she is doing the very best she believes she can, whilst being confronted by what she believes to be an awful situation.  However, I am satisfied that this has an effect on her attitude and, indeed, as I have already said, her capacity.  So far as the father is concerned, I am satisfied that his case, as it was presented to me, indicated that he certainly wished to be vindicated in respect of the allegations of sexual abuse, and that he wished to have his views as to what is best for the child recognised by the Court.

14. There is an element of abuse of a non-sexual nature raised by the mother (subparagraph (j)).  She spoke of an incident of the father grabbing her throat.  She also spoke of an incident of a can being thrown.  On the whole, I am not satisfied that that is a matter which has either been the subject of significant evidence on the material before me, and one which I need consider in great depth.  The significance of that may well emerge later in these reasons for Judgment.

15. I turn then to deal with section 61DA in relation to the presumption of equal shared parental responsibility. The Act imposes a presumption that there shall be equal shared parental responsibility. The Act, however, goes on to provide that that presumption should not be found to apply where there has been abuse or, further, subsection (4) provides that the presumption can be rebutted by evidence that satisfies the Court that it is not in the best interests of the child for there to be equal shared parental responsibility. The presumption, I am satisfied, is not, in this case, displaced by the allegations, which I have not found proven, of sexual abuse of the child. I can find no discrete evidence of violence that the mother asserts that she suffered at the hands of the father, so as to displace the presumption.

16. However, there is no doubt that the presumption may be rebutted, as against being found not to apply, on the body of evidence available to the Court.  It is clear that these parties cannot communicate by means of speaking face to face or by telephone.  The father’s counsel puts to me that communication can occur by text or email.  I have no reason to believe, nor do I accept, that this would be a more successful method for the parties to deal with each other.  The father does not suggest any means to break a deadlock or impasse that may arise where the parties are required to deal with each other in the manner that he posits so as to endeavour to obtain a consensus.

17. In this case, the long-term major issues do not seem to be in great dispute.  The child’s surname, as I have already made reference to, is no longer the subject of dispute.  There is no issue as to where the child is to live.  There is no issue as to religious education.  Whilst the mother has raised the fact that the child is Aboriginal, as I have said, nothing seems to turn on this aspect of the child’s future upbringing.  The child clearly is to live with the mother and that will be at a considerable distance from the father.  That indicates that she would be in the best position to chose the school or schools that the child will attend from her own knowledge gained in the area in which she and the child live.

18. In my view, to force these parties to communicate with each other, when there is no evidence of them having done so successfully in the past, and no real proposal for how it could occur in the future, is to create a situation that would not be in this child’s best interests.  I am satisfied that to require these parties to, in consensus, decide matters regarding their child will do nothing more than create a more volatile and acrimonious atmosphere.  To my mind, that would place the child under more strain than is presently the case, having regard to the positions taken by each of her parents.  In the circumstances of this case, I am satisfied that, on the evidence available to me, the presumption is rebutted.  I am further satisfied that sole parental responsibility can only be conferred upon one party, the party the child is living with, and that is the mother.  I will order accordingly.

19. I turn then to section 65DAA, which considers whether there should be equal time or substantial and significant time in the event of equal shared parental responsibility being conferred on parties.  The decision of Goode & Goode[6], notwithstanding the above and that I have not applied the presumption of equal shared parental responsibility in this case, still requires me to consider significant and substantial time in any event.  Neither party in this case posits for equal time.  Such a situation is clearly inappropriate and unworkable having regard to the circumstances of these parties.  Put another way, equal time is not practical in any of the circumstances of this case, and accordingly, I do not need to consider it further.

    [6] (2006) FLC 93-286

20. I turn then to the issue of substantial and significant time. Those words are not specifically defined within the Act. The Act does, however, set out matters that must be taken into account for time to be significant and substantial, including holiday and non-holiday time, school and non-school time and so forth. In the circumstances of this case, it must be remembered that distance is a significant and ever-present factor. I am satisfied that, in the circumstances of this case, for the father to see the child for some time in E Town and for some time in Sydney, albeit limited to mainly weekend and school holiday time can equate to substantial and significant time.

21. “Significant”, to my mind, means something that is of value and importance to the child.  I am satisfied that her father’s part in her life is important, but I equally recognise the practicalities of the situation that the parties find themselves in, in relation to their respective places of residence.  The father’s time to date has been supervised.  I am satisfied, from the authorities, that supervision has three main purposes.  The first is to protect against the repetition of any previous bad behaviour.  I say this notwithstanding the findings I have already made.  The second purpose is to allay the concerns of the parent from whom the child is going.  In this case, this is a matter of some significance, having regard to mother’s firmly held, but I repeat, in my view, mistaken beliefs.  The third purpose is for the protection of the person against whom the allegations are made. 

22. It is put to me, with some force, by counsel for the father, that if the mother cannot be reassured then why not order overnight, at least, at some time in the future.  I am satisfied, however, that to order overnight time in the face of the mother’s beliefs would only exacerbate those firmly held, but mistaken, beliefs.  I am very much persuaded by the evidence of the Family Consultant Ms I that she finds herself unable to recommend overnight time at this stage, and that it would be of no benefit to the child, were overnight time to occur at this time.

23. However, Ms I did indicate that there could be consecutive days, and those consecutive days could, in the appropriate circumstances, be more than two.

24. I am unable to predict if the mother’s attitude will ever soften.  I am satisfied, notwithstanding this, that there is a real and proper benefit to this child in spending time with her father.  I propose to order that there be some consecutive days of time but, in light of the matters that I have sought to deal with, I propose that that time, so far as my orders are concerned, will not progress to overnight time.

25. The orders that I make will be final orders.  I cannot make interim orders for the matter to come back before me.  I cannot order that overnight time should commence at any specified or determinable date in the future on the material I have before me, and the matters I have endeavoured to balance.  However, that is not an end to the matter.

26. If circumstances change, and the father can put proper evidence before the Court, that the child’s best interests would be served by her spending overnight time with him, and this will clearly mean that he will have to demonstrate a change from the present circumstances, he would be able - having regard to cases such as Rice & Asplund[7] - to bring the matter back to the Court for further determination.  I am aware that this will involve time and expense.  However, such time and expense, if he chooses to do so, are unavoidable concomitants of a further application.

    [7] (1979) FLC 90-725

27. What is my concern is the best interests of the child.  If, in the father’s view, to realise those interests he needs to bring the matter back before a Court then that is a matter that he must attend to.  The evidence that I have heard, as to the situation between the parties’ households, creates its own difficulties.  The father, as I have said, appears to have small appreciation of the effect on the child travelling from E Town to Sydney, which would, in all likelihood, be by train if the child travels with the mother.  The father says, as I understand it, that all time in school holiday periods should take place in Sydney.

28. I am satisfied that, so far as holiday time is concerned, the mother could travel to Sydney and stay with her mother, if required to do so.  This would have, for the child, the advantage that she could spend time with the father and her grandmother in their homes.

29. I am satisfied that the mother should travel for two of the school holiday periods in each year, bringing the child to Sydney.  I am further satisfied that those holidays should be the holidays between the second and third terms in each school year, and should be during the long school holidays, which, I would describe as the December/January Christmas holidays.

30. I am satisfied that because of this very real difficulty with distance, non-holiday time is going to be limited.  The father has made some significant mention of his requirement to be available to work and, accordingly, as I understand it, he says he would travel to E Town on a Friday or Saturday and return on a Sunday afternoon.  To my mind, that is, in all the circumstances, a sensible and proper proposition.  The father seemed to be suggesting by his application that once the matter was concluded that he would only want to see the child once in each school term.  To my mind, that is not adequate.

31. I propose to make orders that the father spend further time with the child in the E Town area.  I will order that his time will expand.  As I have already said, I have been assisted by the minute proposed by the Independent Children’s Lawyer.  I find the proposed definition of times to be sensible.  I am satisfied that until July, a contact centre should be the point where the child and father continue to spend time.  Thereafter, I am satisfied that the father’s time with the child should be unsupervised, but should take place in E Town.  It should start with a four hour period, and then expand in time periods as posited by the Independent Children’s Lawyer. 

32. Eventually, as from 27 October 2013, the father’s time should be from 9.00 am to 5.00 pm each alternate Sunday, such visits to occur in E Town.  This timeframe makes allowance for the father to be available for the birth of his child with his present partner.  For those periods, the father could travel to E Town on the Saturday to be there, and would then have, despite a long drive home, the ability to return home on the Sunday night if he so chose, or spend a further overnight in the E Town area and return home on the Monday morning.

33. I have already spoken of school holiday time.  In cases such as this such time is of real importance.  I am satisfied that the father’s time with the child during school holidays should commence in 2014.  That is, approximately, some 12 months ahead, with the first of those periods falling between Terms 1 and 2 in the year 2014.  That time shall be spent in E Town.  I am then satisfied that the holidays in the middle of the year shall be spent in Sydney.  Further, I am satisfied that the third holiday period in 2014 shall revert and be spent in the E Town area.

34. As to the December/January Christmas holiday periods, I am satisfied that there should be two separate periods of three consecutive days between the father and the child.  Those periods of time, I am satisfied, shall occur in Sydney. 

35. I am satisfied that the suggestion of the Independent Children’s Lawyer, as to when the times should commence during school holidays, is sensible, that is, that time shall commence on the middle Saturday of short holiday periods, and then take place on the second and the fifth Saturdays in the long holiday period.

36. I propose to follow very closely the Independent Children’s Lawyer’s proposal as to the collection and return of the child on each occasion of time.  I propose to suspend the father’s time on Mother’s Day and that any time he was to have on that day be reallocated to the Sunday immediately following Mother’s Day.

37. I do propose to make an order that the mother is to have the responsibility of advising the father if the child is, for any reason, unable to attend for time.  I do propose to order that the parties enrol themselves in the F Contact Centre to facilitate changeovers in the Sydney area.

1. I will then make a non-denigration order, and orders as to the exchange of addresses and, at least, mobile telephone numbers.  I will further order that the mother shall not relocate from her present address, without giving the father 28 days notice of her intention to do so.  Such notification shall include details of where she proposes to move.  In respect of the father, I do not propose to make a similar order, but simply propose to order that he keeps the mother advised of his present residential address.

2. I then propose to order that the father be restrained from going within 500 metres of the mother’s residence, rather than the 200 metres as was posited by the Independent Children’s Lawyer. 

3. I certainly propose to order that each of the parties be entitled to obtain information from the child’s day care centre or school, and I note that these orders may be provided to such authorities to enable this to occur.

4. I further propose to order that, in the event of the child suffering from any illness or injury, the other parent is to be notified, and that each parent shall be at liberty to obtain information in respect of such injury, or in respect of the child’s health generally.

5. Finally, I propose to order that if the child is to be involved in counselling, that the father be informed of such fact, and that he be at liberty to contact the counsellor and become involved in such counselling, if the counsellor deems that to be appropriate.

6. As to the father’s unsupervised time, I repeat those dates.  The unsupervised time shall commence on 7 July 2013 each alternate Sunday from 10.00 am to 12.00 pm in the E Town area up until 31 August 2013.  The next progression of the father’s time shall commence on 1 September 2013 and be from 10.00 am to 2.00 pm each alternate Sunday in the E Town area up until 9 October 2013.  There is a gap between this and the next progression, for reasons that have been outlined earlier in these reasons for Judgment, and the father’s time each alternate Sunday from 9.00 am to 5.00 pm in the E Town area commences on 27 October 2013.

7. What I propose to do is firstly discharge all previous parenting Orders, order that the mother have sole parental responsibility and then incorporate the requirement for her to notify the father of decisions.  I will then order that the child live with the mother and then make orders dealing with the father’s time with the child.

8. I can only hope that with these Orders in place, the parties can move forward.  I have not made an order for counselling, because to compel these parties to do so, to my mind, might be counterproductive.  I note that I do think that both parties, and particularly the mother, would be assisted by appropriate counselling.  I further note that, to her credit, the mother says she is seeking to renew therapy with a psychiatrist, subject to a mental health plan, or some other method of such being funded.  I encourage that be done.  The father should also consider his position in this regard.

9. The orders that I then make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 12 April 2013.

Associate:                 

Date:    12 July 2013