GURNAY & WATSON

[2013] FamCA 1091

FAMILY COURT OF AUSTRALIA

GURNAY & WATSON [2013] FamCA 1091

FAMILY LAW – CHILDREN – Best interests.
FAMILY LAW – CHILDREN – Parental responsibility.
FAMILY LAW – CHILDREN – With whom a child lives – Family violence.

Family Law Act 1975 (Cth)

APPLICANT: Mr Gurnay

RESPONDENT: Ms Watson

INDEPENDENT CHILDREN’S LAWYER: Robert Halliday

FILE NUMBER: MLC 4658 of 2010

DATE DELIVERED: 17 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 26-30 August, 2, 3 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Taft Lawyers

COUNSEL FOR THE RESPONDENT: Mr Burns

SOLICITOR FOR THE RESPONDENT: Neesham White Gentle

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

1.That all previous parenting orders regarding the child J Watson born … 2009 (“the child”) be discharged.

2.That the mother and the father have equal shared parental responsibility for the child.

3.That the child live with the mother.

4.That the child spend time with the father as follows:-

(a)From 10.00 am to 6.00 pm each Wednesday and Sunday commencing forthwith, such time to continue for a period of four weeks;

(b)As and from the expiration of the time provided in sub-paragraph (a) hereof for a period of eight weeks each alternate weekend from 2.00 pm Saturday to 6.00 pm Sunday;

(c)As and from the expiration of the time provided in sub-paragraph (b) hereof until 30 June 2014 each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday;

(d)As and from 1 August 2014 as follows:-

(i)     Each alternate weekend from 5.00 pm Friday until 10.00 am Monday or the commencement of school or kindergarten, whichever shall first occur;

(ii)    Each alternate week from after school Monday until 6.30pm;

(iii)   As may otherwise be agreed between the parties from time to time.

(e)As and from the conclusion of term 2 of the child’s first school year or 2015, whichever shall first occur, for one half of each school term holiday and long summer holiday period at times to be agreed and failing agreement for the first half in 2015 and each alternate year thereafter and the second half in 2016 and each alternate year thereafter;

(f)For four hours on the child’s birthday at times to be agreed and failing agreement from 3.00 pm to 7.00 pm;

(g)On Christmas Day 2013 for a period of four hours at times to be agreed and failing agreement from 10.00 am to 2.00 pm;

(h)As and from 2014 and each alternate year thereafter from 5.00 pm Christmas Day to 5.00 pm Boxing Day;

(i)As and from 2015 and each alternate year thereafter from 5.00 pm Christmas Eve to 5.00 pm Christmas Day;

(j)From 10.00 am to 5.00 pm on Father’s Day;

(k)As may otherwise be agreed between the parties from time to time.

5.That the father’s time pursuant to order 4 hereof be suspended during the following periods:-

(a)From 10.00 am to 5.00 pm on Mother’s Day;

(b)In the event that the child’s birthday falls during the father’s time, for a period of four hours at times to be agreed and failing agreement from 3.00 pm to 7.00 pm;

(c)As and from 2014 and each alternate year thereafter from 5.00 pm Christmas Eve to 5.00 pm Christmas Day;

(d)As and from 2015 and each alternate year thereafter from 5.00 pm Christmas Day to 5.00 pm Boxing Day.

6.That for the purposes of the father’s time pursuant to paragraph 4 hereof:-

(a)The father’s time pursuant to order 4(a) hereof is conditional upon the father’s mother, Ms G, being in substantial attendance;

(b)The first three occasions of overnight time pursuant to order 4(b) hereof is conditional upon it occurring in the father’s home with the father’s mother, Ms G, staying overnight or upon such time occurring at the home of Ms G provided that she is present overnight;

(c)That upon the conclusion of each period of time during which Ms G is required to be in substantial attendance she provide to the mother at the conclusion of the time details of what activities and with whom the child participated, such information to be communicated to the mother by telephone or email or by direct conversation;

(d)The mother and the father continue family and therapeutic counselling with the psychologist nominated by the Independent Children’s Lawyer pursuant to paragraph 2(c) of the orders dated 3 September 2013 (“the Psychologist”) and follow the directions of the Psychologist;

(e)The Psychologist and the mother and the father each provide a written report to the Independent Children’s Lawyer at the conclusion of the first six sessions with the Psychologist, such report to detail the progress of the mother and the father particularly with respect to their ability to:-

(i)     Talk to and communicate with each other regarding the child’s welfare and activities; and

(ii)    Focus on the child’s needs to have a positive relationship with both of his parents.

(f)The parties shall follow the directions of the Psychologist in the event of the child expressing negative and defiant behaviour before, during and after spending time with the father and they shall make all reasonable endeavours to ensure the child does not accuse the other parent of behaving towards the child in a manner not in his best interest;

(g)The parties maintain a communication book to record the details of the child’s activities, health and welfare issues and to be exchanged at the commencement and conclusion of the child’s time with the father;

(h)For the purposes of changeover the mother or a responsible adult nominated by her (“the mother’s nominee”) deliver the child to the home of the paternal grandmother at the commencement of the time and collect the child from the home of the father at the conclusion of the time SAVE THAT in the event that B Contact Centre (“the Contact Centre”) becomes available, changeover shall occur there and occur at the Contact Centre on no less than four occasions;

(i)In the event that changeovers occur at the Contact Centre the Psychologist and the Independent Children’s Lawyer be at liberty to communicate with the Director of the Contact Centre regarding the parties’ progress; and

(j)The mother and the father follow all reasonable directions of the Director of the Contact Centre and the Psychologist regarding giving effect to these orders to facilitate the child’s transition from each parent’s respective care.

7.That in the event of an emergency relating to the child during a period when he is in their care each party be permitted to contact the other by text message and do so as soon as possible.

8.That upon the child commencing playgroup, kindergarten and school:-

(a)each party authorise the institution which the child attends to provide to the father at the father’s expense any notices, school reports, school photos and order forms and like material normally available to parents.

(b)the father be permitted to attend school functions, sports days and like events which parents are ordinarily invited to attend.

9.That the mother by herself, her servants or agents be and is hereby restrained from:-

(a)Discussing the XX allegations in the presence or within earshot of the child and her other children;

(b)Discussing in the presence or hearing of the child or her other children the allegations she says were made by the child alleging the father and/or the child Z abused him; and

(c)Allowing the child to be left in the sole presence of Ms M and otherwise the respondent shall be in the child’s presence in the event of the child being in the presence of Ms M.

10.That all extant applications otherwise be dismissed.

11.That the appointment of the Independent Children’s Lawyer be discharged as and from 1 July 2014.

12.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES

A.That from time to time each of the parties may wish to take a holiday with the child during the long summer holidays exceeding one week and the parties will use their best endeavours to agree upon such times and any necessary make-up time.

B.The mother and the father shall share the cost of:-

(i)Dr K’s attendance at court to give evidence;

(ii)The psychologist referred to in order 6(d) hereof and the cost of B Contact Centre or other changeover facility.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gurnay & Watson 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 MELBOURNE

FILE NUMBER: MLC 4658  of 2010

Mr Gurnay

Applicant

And

Ms Watson

Respondent

REASONS FOR JUDGMENT

1. At the time of trial, the child J (“the child”) was aged three years and 10 months having been born in late 2009.  The child has lived with his mother, the respondent in these proceedings, since his birth.  The child’s parents have never lived together and indeed the circumstances of his conception, that is whether as a result of rape perpetrated by the father (as alleged by the mother) or a consequence of the parties’ short relationship (as alleged by the father) was one of many issues in this case.

2. The child has been at the centre of conflict between his parents since his birth.  That conflict has resulted in proceedings before the Federal Magistrates’ Court (as it then was) and since October 2012 in this Court. 

3. It is common ground between the parties that the child has displayed sexualised behaviour.  It is also alleged by the mother that the child has made disclosures of sexual abuse.  In addition, since shortly following his birth, there have been numerous Intervention Order proceedings involving the parties and those charged with the task of supervising the father’s time with the child.

4. Due to the serious allegations of the mother that the child has been sexually abused whilst in the father’s care the conflict between the parties has culminated in the listing of the hearing of the proceedings as a Magellan matter.

THE PARTIES

1. The applicant is Mr Gurnay, aged 32 years (“the father”).  He is the father of the child.  He is a full-time homemaker and parent.  The father is reliant upon Centrelink benefits.

2. The father lives in Town L with his three children from other relationships, being R, aged nine years, N, aged eight years, (both children being from the father’s relationship with Ms E) and Z, aged six years (being a child from his relationship with Ms I).   

3. Since 2011, the children R and N have lived with the father five days per week. 

4. The father did not spend time with the child Z following his birth.  In January, 2010, as a result of intervention by the Department of Human Services (“DHS”), the father commenced spending time with Z (who was then aged three years).  Pursuant to final orders made on an undefended basis in the Federal Magistrates’ Court of Australia (as it then was) on 13 August 2012, the father has sole parental responsibility for Z and the child lives with him.

5. The father has re-partnered, with Ms F, aged 21.  They do not live together, although it was the father’s evidence that she spends three to four nights per week in his home.  Ms F was in Court supporting the father each day of the hearing.  She was not a witness in the proceedings.

6. The father seeks orders that he have sole parental responsibility for all decisions about major long-term issues affecting the child J and further that the child live with him.  The father proposes that the child spend time and communicate with his mother by telephone and at a supervised contact centre, such time gradually increasing until the child spends time with the mother each alternate weekend from 4.00 pm on Friday to the commencement of school on Monday, and for one half of school holiday periods.

7. The respondent is Ms Watson, aged 23 years (“the mother”).  She is the mother of the child J.  She lives with the child at Town O and her occupation is homemaker.  The mother has some part-time employment as a salesperson. 

8. The mother lives with her partner, Mr D, aged 22 years and her two other children, namely Y, aged seven years (who is a child of her relationship with Mr H), and A aged 12 months (who is a child of her relationship with Mr D).

9. In her Amended Response to Initiating Application filed 3 May 2013, the mother proposed that the child J live with her and spend time with the father, initially for short daytime periods and upon his commencement at school for three hours each alternate Saturday.  She proposed that all time the child spends with the father be supervised.

10. By the time of the commencement of her case the mother’s position had shifted markedly such that the time she proposed the child spend with the father be on an unsupervised basis.  She sought orders that the child continue to live with her and that the mother and the father have equal shared parental responsibility for the child.  Further the mother sought orders that the parties facilitate the child’s attendance upon a child psychologist as recommended by the Independent Children's Lawyer (“the ICL”) to engage in therapeutic counselling so as to enable the child to “re-engage with his father”.  The mother also sought orders that the child commence spending time with the father initially for a period of one day per week and graduating out to two days per week until the child commences school.  Finally, the mother proposed that upon the child’s commencement at school he spend overnight time with the father, such times to be as directed by the Court.

11. By the conclusion of the trial the mother’s position had shifted further such that she adopted the proposals of the ICL detailed below.  So significant was the move in the mother’s position that at the conclusion of the hearing I made orders by consent which provided inter alia:-

    ·    That until further order the child spend time with the father as follows:-

    (a)    Each Wednesday from 11.00 am to 5.00 pm; and

    (b)    Each Sunday from 10.00 am to 4.00 pm

    ·    That for the purposes of that time:-

    (a)    The father’s mother be in substantial attendance, she to give an undertaking to the Court to that effect;

    (b)    The father and the mother immediately commence family and therapeutic counselling with a psychologist recommended by the ICL such counselling to address their communication and the child’s need to have a positive relationship with both of his parents;

    ·    Providing the ICL with liberty to apply on short notice in the event of either party’s non-compliance with the orders.

12. No further applications have been made since those orders were made on 3 September 2013.

BACKGROUND

1. The mother alleges that she has never been in a relationship with the father, but that the child J was conceived as a result of the father raping her during a weekend visit to XX.  The father denies that allegation and alleges that the parties were in a relationship for a period of one to two months between late December 2008/early January 2009 and February 2009.

2. For the reasons detailed later in this judgment, I am satisfied that the father’s account of the parties’ relationship is the more accurate of the two.  That account is supported by the evidence of his friend, Ms P, and his mother, Ms G, both of whom gave evidence as to their observations of the parties’ relationship.

3. The child J was born in late 2009.  It is common ground between the parties that the father visited the mother and child whilst in hospital following the child’s birth.  At issue between the parties is whether or not the father was welcome to attend upon the mother and the child in hospital. 

4. Following that visit the mother filed an application for an Intervention Order naming the father as a respondent.  That application was filed on or about 13 November 2009.  On 4 December 2009 the father gave an undertaking to the Magistrates’ Court of Victoria that he would not commit family violence against the mother, would not approach or remain within five metres of the mother and would not contact or communicate with the mother except through a lawyer or for mediation.  That undertaking was to last until 4 December 2010. 

5. Subsequent to the giving of the undertaking the father engaged lawyers to assist him in clarifying whether or not he was in fact the child’s father.  Arrangements were made for the parties to attend for parentage testing which confirmed the child’s paternity. 

6. Following receipt of the results of the parentage testing the father sought to initiate mediation for the parties at a Family Relationships Centre.  The mother refused to attend for mediation and accordingly a Section 60I certificate was issued on 22 February 2010.

7. The father commenced proceedings in the Federal Magistrates’ Court of Australia (as it then was) at Melbourne on 21 May 2010, seeking orders that he spend time with the child.  That application was opposed by the mother. 

8. Pursuant to interim orders of the Federal Magistrates’ Court the father commenced spending time with the child at B Contact Service, such time commencing in August 2010 (when the child was aged approximately 10 months).

9. On 2 March 2011 further interim orders were made for the child to spend time with the father on an unsupervised basis, with the periods of time the child was to spend with the father to extend to six hours on two occasions each week.

10. On 2 August 2011 final orders were made in the Federal Magistrates’ Court.  Those orders provided inter alia:-

    ·That the parties have equal shared parental responsibility for the child;

    ·That the child live with the mother; and

    ·That the child spend time and communicate with the father as follows:

    -Initially from 10.00 am to 6.30 pm each Tuesday and Sunday, such time to continue until Easter 2012;

    -Thereafter and until the child’s third birthday, overnight from 12.00 noon Tuesday to 12.00 noon Wednesday;

    -Overnight from 12.00 noon Saturday to 12.00 noon Sunday;

    -From 12.00 noon every second Thursday to 12.00 noon Friday (being a total of three nights per fortnight);

    -From the child’s third birthday each alternate week from 10.00 am Saturday to 5.00 pm Sunday and from 12.00 noon Tuesday until 12.00 noon Wednesday each week;

    -From May 2013 from 5.00 pm Friday to 5.00 pm Sunday each alternate week and from 12.00 noon Tuesday to 12.00 noon Wednesday each alternate week; and

    -Upon the child commencing school, from after school Friday to the commencement of school Monday each alternate week, and after school Thursday until the commencement of school Friday in each alternate week.

11. The operation of those orders continued without incident for a period of approximately eight months until approximately Easter 2012.  The father commenced overnight time with the child in or about April 2012 (when the child was aged approximately two years five months). There were three occasions upon which the child spent overnight time with the father.  Thereafter the arrangements for the father to spend time with the child broke down.

12. In May 2012 the father filed a Contravention Application in the Federal Magistrates’ Court of Australia at Dandenong.  That application was listed for hearing on 2 July 2012.  On 2 July 2012 interim orders were made for the child to spend time with the father each Tuesday from 10.00 am to 5.00 pm and each Saturday from 9.00 am to 5.00 pm.  Further orders were made for the preparation of a Family Report and the matter was listed for a hearing on 22 October 2012.  The child resumed spending time with the father in accordance with those orders.  A Family Report was prepared by Mr V and was released to the parties on 1 August 2012. 

1. The child continued to spend time with the father until 25 August 2012.  As a result of the mother again failing to provide the child for time with the father, the father caused a further Contravention Application to be filed in the Federal Magistrates’ Court on 12 September 2012.  That application was listed for hearing on 21 September 2012. 

2. On 21 September 2012 the father’s Contravention Applications filed 28 May 2012 and 12 September 2012 were dismissed on the basis that the mother was found to have had a reasonable excuse for contravening the orders of 2 August 2011 and 2 July 2012.

3. On 28 September 2012 the mother filed a Notice of Child Abuse or Family Violence (“the First Notice”).  That document was prepared by the mother and contained 54 paragraphs detailing the alleged abuse.  The allegations contained in that document include:-

   ·At paragraph 6 a disclosure by the child that “I don’t want to go daddy punches me in the doodle at the table”;

   ·At paragraph 12 a disclosure by the child to the mother that “you don’t love me…daddy told me”;

   ·At paragraph 27 allegations that the child was engaging in sexualised behaviour, making thrusting motions on his teddy bear “like at daddy’s”; and

   ·At paragraphs 43, 44, 46 to 53 disclosures of sexualised behaviour by the child including statements by him that “I sex [Z] at daddys” [sic].

   In addition to the allegations with respect to sexualised behaviour and disclosure of abuse, the First Notice contains many allegations which do not constitute abuse, as defined in s 4(1) of the Act.  For example, many of the allegations contained at Part E of the First Notice relate to the child appearing “timid and shy” upon his return from time with the father, the child appearing “clingy” upon his return and the child appearing reluctant to attend time with the father. 

4. The mother was cross-examined in relation to the allegations contained in the First Notice.  Both the matters included by her in the First Notice and her responses to questions put by counsel for the ICL indicate that the mother had little understanding of what constitutes abuse as defined by the Act. It is most unfortunate from the child’s perspective that the mother, who I found to be lacking in maturity (she having had her first child when aged only 16 and becoming a mother of two at age 19), has represented herself for much of these proceedings.  I have no doubt that the lack of representation of the mother at critical stages in the proceedings, particularly when the allegations of abuse emerged has adversely impacted upon the manner in which the matter has progressed.  Had the mother had the benefit of legal advice at earlier stages in these proceedings, the hearing of this matter may well have been avoided.   

5. As a consequence of the dismissal of the father’s contravention applications in October 2012 the father filed an Initiating Application seeking a reinstatement of his time with the child.  An Independent Children's Lawyer was appointed and the matter was otherwise adjourned to 8 October 2012. 

6. On 8 October 2012 the matter was transferred by the Federal Magistrates’ Court to this Court.  Orders were made that day assigning the matter to the Magellan list of cases. 

7. The matter was listed before Senior Registrar FitzGibbon on 6 February 2013. That day the orders of the Federal Magistrates’ Court made 2 July 2012 were suspended.  Further, orders were made for the child to spend time with the father:

   ·Each Tuesday from 10.00 am to 1.00 pm; and

   ·Each Saturday from 12.00 noon to 4.00 pm, such time to be supervised by Ms M inside J Play Centre at Suburb LL.

   Further orders were made for the parties to attend upon Dr K for psychological assessment.  The matter was otherwise adjourned to the Senior Registrar’s list on 23 April 2013.

8. It is no surprise, having regard to the evidence of Ms M to which I will refer later in this judgment that those arrangements for the father to spend time with the child failed. 

9. On 23 April 2013 further orders were made for the child to spend time with the father as follows:-

   ·Each Tuesday from 10.30 am to 1.30 pm; and

   ·Each Thursday from 3.15 pm to 5.00 pm, such time to take place at S Indoor Centre, Suburb C, and such time to be supervised by the paternal and maternal grandmothers.

10. The arrangements for the child to spend time with the father pursuant to those orders continued through May and June with considerable difficulty which I will detail below.

11. Prior to the commencement of the hearing, the father had had no time with the child since June 2013, save for time spent during the Family Report writing process which occurred in July 2013. 

12. In addition to the proceedings which have been on-going in the Federal Magistrates’ Court and this Court, since April 2012 there has been a raft of intervention order applications filed by the mother and those who have undertaken supervision of the father’s time with the child.

MATERIAL RELIED UPON AND ORDERS SOUGHT

1. The applicant relied upon:-

   ·Case information document dated 23 August 2013;

   ·Amended Initiating Application filed 6 May 2013;

   ·Affidavit of the father sworn 9 July 2013 and filed 10 July 2013;

   ·Affidavit of the paternal grandmother sworn 9 July 2013 and filed 10 July 2013;

   ·Affidavit of Ms P sworn 19 August 2013 and filed 21 August 2013;

   ·Affidavit of Dr K sworn 22 April 2013 and filed 24 April 2013;

   ·Family Report released 6 August 2013; and

   ·Affidavit of Ms W sworn 22 August 2013 and filed 22 August 2013.

2. The father seeks orders that:-

   ·The father have sole parental responsibility for all decisions about major long-term issues affecting the child;

   ·That the child live with the father;

   ·That the father make all necessary appointments at his expense for the child to attend upon a therapist for the purpose of assisting the child to understand:-

   (a)That neither of his parents intend him harm;

   (b)That he has not been sexually abused; and

   (c)That neither of his parents fear or hate the other.

   ·That the father and the mother do all things necessary to assist the therapist to maintain a relationship between the child and the mother having regard to these orders;

   ·That the child spend time and communicate with the mother as follows:-

   (a)By telephone:

   (i)     At times agreed by text message or failing agreement at 5.00 pm Tuesday, Thursday and Sunday each week;

   (ii)    Such other or further times as considered necessary and helpful by the appointed therapist;

   (iii)   With the mother to make the call to the father’s second mobile number and the father to facilitate the call on loudspeaker; and

   (iv)   To be suspended if the mother acts inappropriately by raising issues of harm or sexual abuse of the child during the said telephone calls.

   (b)At a supervised contact centre as available such as B Child Contact Service or as recommended by the Independent Children's Lawyer for eight occasions with the mother not to bring other parties to the supervised contact centre;

   (c)Upon completion of the eight periods of time at a supervised contact centre as referred to above for a further eight occasions from 9.00 am to 5.00 pm on alternate Saturdays;

   (d)Thereafter:-

   (i)     Each alternate weekend from 4.00 pm or the conclusion of school when the child commences schooling on Friday until 10.00 am or the commencement of school on Monday (or Tuesday if Monday is a public holiday) with the mother to collect the child from school and deliver the child to school; and

   (ii)    For one half of all school term holidays by agreement and failing agreement for the first half.

   ·For the purposes of the preceding paragraph, handover other than by way of collection from or return to school is to occur within the indoor foyer of a 24-hour manned police station only and at no other location;

   ·For the purposes of school holiday time the school holidays commence at 10.00 am on the first day after the child has finished school and conclude at 6.00 pm on the last day prior to the child returning to school;

   ·That the mother be permitted to attend upon the child’s school teachers and principal, treating medical practitioners and the child’s school to attend sports and extra-curricular activities where the child is participating;

   ·That the father and mother each be at liberty to provide a copy of these orders to the principal of any school at which the child attends, Victoria Police and the child’s medical practitioners; and

   ·That the mother be restrained from communicating with the child other than as provided by these orders or from making comments to the child about these proceedings and is further restrained by injunction as are her agents from contacting the child through any social medium other than as may be provided in these orders.

3. The mother relied upon:-

   ·Amended response to Initiating Application filed 3 May 2013;

   ·Affidavit of the mother sworn 23 July 2013 and filed 31 July 2013;

   ·Affidavit of Ms U sworn 19 July 2013 and filed 31 July 2013;

   ·Affidavit of Mr D sworn 23 July 2013 and filed 31 July 2013;

   ·Affidavit of Ms Q affirmed 23 July 2013 and filed 31 July 2013;

   ·Affidavit of Ms M sworn 23 July 2013 and filed 31 July 2013;

   ·Affidavit of Ms WN sworn 22 July 2013 and filed 31 July 2013;

   ·Affidavit of Dr K sworn 22 April 2013 and filed 24 April 2013; and

   ·Family Report dated 5 August 2013.

4. During the course of the hearing the mother elected not to rely upon the witness, Ms WN.  Accordingly, that witness was not required for cross-examination.

5. The mother’s position altered during the course of the hearing.  On the first day of the hearing I was informed the orders sought by her were as follows:-

   ·That the parties have equal shared parental responsibility for the child;

   ·That the child live with the mother;

   ·That until the child commences school the child spend supervised time with the father as follows:-

   (i)Each Thursday from 3.15 pm until 5.00 pm;

   (ii)Each alternate Saturday from 2.00 pm until 5.00 pm; or

   (iii)At such other times and days as are able to be facilitated by B Contact Centre or such other children’s contact centre as agreed between the parties and/or a private supervisor with the cost of such private supervisor to be borne equally by the parties with such time to take place within the designated age-appropriate area at an indoor play centre as agreed between the parties and the supervisors and/or at a children’s contact centre;

   ·That upon commencement of school in Grade Prep the child spend supervised time with the father as follows:-

   (i)Each alternate Saturday from 2.00 pm until 5.00 pm or such other times and other days as may be facilitated by B Contact Centre or such other children’s contact centre or as agreed between the parties and the supervisors and/or private supervisor with the cost of such private supervisor to be borne equally by the parties with such time to take place within the designated age-appropriate area at an indoor play centre or as agreed between the parties and supervisors and/or at a children’s contact centre;

   ·That the time to be spent by the child with the father pursuant to the above orders is at all times to be supervised by the maternal grandmother and/or the mother’s partner, Mr D, or a private supervisor at the equal shared expense of the parties and/or a supervisor from B Contact Centre or such other children’s contact centre as agreed between the parties;

   ·That changeover occur in the foyer of the agreed indoor play centre and/or at a children's contact centre;

   ·That the father be and is hereby restrained by injunction from accompanying the child to the toilet facilities;

   ·That both parties forthwith enrol in, attend and complete a post-separation parenting course and provide evidence of such completion to the Independent Children's Lawyer;

   ·That the father forthwith enrol in, attend and complete a parenting course and provide evidence of such completion to the Independent Children's Lawyer;

   ·That both parties do all acts and things and sign all necessary documents to facilitate the child’s enrolment in and attendance at a four-year-old kindergarten for commencement in 2014;

   ·That each party is hereby restrained by injunction from denigrating the other party and/or any member of the other party’s family within the hearing and/or presence of the child and from allowing any other person to do so; and

   ·That each party is hereby restrained by injunction from discussing these court proceedings within the hearing and/or presence of the child and from allowing any other person to do so.

6. On 28 August 2013 being the third day of the hearing, counsel for the mother tendered a Minute of the mother’s proposed orders (Exhibit R1).  That Minute modified the mother’s position so that in addition to orders that the parties have equal shared parental responsibility for the child and that he live with the mother, she sought orders in the following terms:-

   ·That the parties forthwith do all such things and sign all such documents to permit the child to attend upon a qualified child psychologist recommended by the Independent Children's Lawyer to engage in therapeutic counselling for the child to enable him to re-engage with his father;

   ·That the child commence spending time and communicating with the father at such time and in such manner as is recommended by the counsellor;

   ·That at the commencement of the child spending time with his father it shall be initially for a period of one day per week for two months and then two days per week until the child commences school;

   ·Other time for special occasions by order of the Court or by agreement;

   ·When the child commences school the child shall spend overnight time with the father as ordered by the Court;

   ·The mother continues with her therapeutic counselling with Dr Q until such time as Dr Q determines that such counselling is no longer required; and

   ·Both parties forthwith do all such things and sign all such documents to permit them to attend a post-separation parenting course.

7. Significantly the mother’s amended proposals removed the requirement that the father’s time with the child be supervised. 

8. In closing submissions, the mother further modified her position seeking orders for the father to spend time with the child in accordance with the proposals of the ICL as detailed below.

9. The ICL relied upon:-

   ·The Family Report dated 5 August 2013;

   ·Affidavit of Ms W (DHS) filed 22 August 2013; and

   ·Affidavit of Dr K filed 24 April 2013.

10. The witness Ms W was not required for cross-examination.

11. At the commencement of the hearing the ICL had no firm view as to the orders he sought, indicating that he was not able to propose final orders until the evidence of the parties had been tested.

12. In closing submissions, counsel for the ICL tendered a Minute of proposed orders on behalf of the ICL (Exhibit ICL 6).  The orders sought by the ICL were that:-

    ·All previous orders regarding the child be discharged;

    ·The parties have equal shared parental responsibility for the child;

    ·That the child live with the mother;

    ·That the child spend time with the father as follows:-

    (a)From 10.00 am to 4.00 pm each Tuesday and Sunday commencing forthwith;

    (b)From 10.00 am until 6.00 pm each Tuesday and Sunday commencing Tuesday 1 October 2013 or four weeks after commencement of time spent pursuant to sub-paragraph (a), whichever date is the earliest date;

    ·For the purposes of the time spent:-

    (a)The time spent shall be conditional upon the applicant’s mother Ms G being in substantial attendance and she shall ensure the respondent mother is advised by her at the conclusion of time spent, details of what activities and with whom that activity the child participated in and with such communication to be by phone or email or by direct conversation;

    (b)The applicant’s mother shall give an undertaking to the Court in terms regarding her obligations to be in substantial attendance and shall ensure she keeps a communication book to be used by herself, the applicant and the respondent to detail the child’s activities, health and welfare issues when in the applicant’s and the respondent’s care;

    (c)Further, the applicant and the respondent shall immediately commence family and therapeutic counselling with a psychologist nominated by the ICL directed at:-

    (i)     Learning to talk to each other about the child’s welfare and activities; and

    (ii)    Ensuring they focus on the child’s needs to have a good relationship with both parents.

    (d)The parties shall follow the directions of the psychologist and the psychologist and the parties (the parents) shall each provide a written report to the ICL at the conclusion of six sessions particularising the progress each parent has made to ensure the aims detailed in sub-paragraph (c) have been addressed;

    (e)In the event of either party not complying with the above orders the ICL is at liberty to have the case re-listed as a matter of priority;

    (f)Changeover shall take place at the paternal grandmother’s home where the child shall be collected by the father and taken there by a responsible adult nominated by the respondent or by the respondent herself and at the conclusion the mother or her nominated adult shall collect the child from the father at the father’s home, save that in the event of B Contact Centre being available to be a changeover point then changeover shall be at the nominated centre (to be nominated by the ICL) and such changeover shall be supervised for no less than four occasions that time spent pursuant to these orders takes place and the psychologist and the ICL shall be at liberty to consult with the director of the nominated centre and the parties shall follow all reasonable directions of the director and/or the psychologist and/or the ICL regarding putting these orders into effect whereby the child transitions from and to each parent’s respective care;

    (g)The parties shall follow the directions of the psychologist in consultation with the parents, in the event of the child expressing negative and defiant behaviour before, during and after spending time with the applicant father and they shall make all reasonable endeavours to ensure the child does not accuse either parent of behaving towards the child in a manner not in his best interests;

    ·After the expiration of the above spend time with orders, the child shall spend time with the applicant each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday and:

    (i)Sub-paragraphs a, c, d, e, f, and g shall remain in full force and effect for a period of time to be decided by the psychologist in consultation with the parties or for six months whichever is the earliest date save for sub-paragraph (a) which shall remain in full force and effect except that the applicant’s mother shall stay overnight with the child at the applicant father’s home or at her home for the first weekend and after that the applicant shall ensure the respondent mother is advised by him at the conclusion of time spent, detail of what activities and with whom that activity the child the child participated in and with such communication to be by phone or email or by direct conversation;

    ·Further the applicant shall spend time with the child:-

    (a)For four hours on the child’s birthday from 10.00 am until 2.00 pm;

    (b)On Christmas Day from 10.00 am until 2.00 pm or from 4.00 pm until 8.00 pm, such time to be agreed by the parties but if no agreement then at the direction of the psychologist in 2013;

    (c)From 5.00 pm Christmas Day until 5.00 pm Boxing Day 2014 and each alternate year thereafter;

    (d)From 5.00 pm Christmas Eve until 5.00 pm Christmas Day 2015 and each alternate year thereafter;

    (e)From 10.00 am until 5.00 pm on Father’s Day;

    ·From 1 July 2014 the child shall spend time with the applicant from 5.00 pm Friday until 10.00 am Monday or before school on that day, each alternate weekend and the following week from after school Monday until 6.30 pm;

    ·Further the child shall spend one half of each school term holiday and the summer holiday commencing at the conclusion of term 2 of the child’s first school year or in 2015 which ever is the earliest;

    ·That in the event of an emergency relating to the child or time with the child each party be permitted to contact the other party by text message and to do so as soon as possible;

    ·That upon the child commencing playgroup, kindergarten and school each party authorise the institution which the child attends to provide to the father at the father’s expense any notices, school reports, school photos order forms and like normally available to parents;

    ·That upon the child commencing playgroup, kindergarten and school the father be permitted to attend school functions, sports days and like events which parents are ordinarily permitted to attend;

    ·Section 65DA(2) and S 62B orders;

    ·Notations:

    (a)It is noted that from time-to-time each of the parties may wish to take a holiday with the child during the long summer holidays exceeding one week and the parties will use their best endeavours to agree upon such times and any necessary make-up time;

    (b)The parties shall share the cost of Dr K’s attendance at court to give evidence; and

    (c)The parties shall share the cost of the psychologist and the cost of B Contact Centre or other changeover facilities (that does not include the ICL).

    ·The mother shall be and is hereby restrained from (as shall her servants or agents) from:

    (a)Discussing the XX allegations in the presence or within earshot of the child and her other children;

    (b)Discussing the allegations she says were made by the child alleging the applicant and/or the child Z abused him in the presence of or with earshot of the child and her other children; and

    (c)Allowing the child to be left in the sole presence of Ms M and otherwise the respondent shall be in the child’s presence in the event of the child being in the presence of Ms M.

1. Shortly prior to the commencement of the hearing the parties’ legal aid funding was withdrawn.  I was informed that the father was represented by counsel throughout the hearing as a result of financial assistance from his family.  The mother was unrepresented on the first day of the hearing.  The mother’s former solicitor appeared as a courtesy to the Court.  The mother sought that the matter be stood down to enable her to exhaust all avenues of enquiry as to whether she was able to obtain assistance from counsel for the purposes of the hearing.  The matter was stood down to enable those enquiries to occur.  

2. Ultimately, the mother was able to secure counsel to represent her at the hearing.  In light of the fact that counsel appearing for the mother received the brief after lunch on the first day of the hearing, the matter was stood down until the second day, being 27 August 2013 to enable counsel for the mother to familiarise himself with his brief.  Further, given his late receipt of the brief counsel for the ICL very helpfully agreed to cross-examine the applicant father first upon the commencement of the hearing.

RELEVANT LEGAL PRINCIPLES

1. Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60B(2) sets out the principles underlying those objects.  They are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The parties in this matter seek parenting orders as defined pursuant to s 64B of the Act.  That is they seek orders with respect to:-

   (a)With whom the child is to live;

   (b)With whom the child is to spend time; and

   (c)The allocation of parental responsibility for the child.

4. In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA).  Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests.  I will return to the detail of those provisions below.

5. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA).  The presumption relates to the allocation of parental responsibility.  It does not relate to the time the child spends with each parent.  For the reasons set out hereunder, I am satisfied that the presumption in favour of the parents having equal shared parental responsibility applies in this case.

6. Where there is an order for equal shared parental responsibility, the court is  obliged to consider whether the child spending equal time with each parent would be:-

   ·in the child’s best interests (s 65DAA (1)(a)); and

   ·is reasonably practicable (s 65DAA (1)(b)); and

   ·if it is, then consider an order for equal time (s 65DAA (1)(c)). 

7. If there is an order for equal shared parental responsibility and the Court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d)), and then consider an order for substantial and significant time (s 65DAA (2)(e)).

8. According to s 65DAA(3), a child will be taken to spend “substantial and significant time” with a parent only if:

   (a)the time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays; and

   (ii)days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)the child’s daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

9. Sub-section (3) does not limit the other matters to which the court can have regard in determining substantial and significant time.

10. In determining “reasonable practicability” s 65DAA(5) provides that the Court must have regard to:

    (a)how far apart the parents live from each other; and

    (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

    (d)the impact that an arrangement of that kind would have on the child; and

    (e)such other matters as the court considers relevant.

11. A significant issue at the commencement of this case was the allegation by the mother that the child has displayed sexualised behaviour and made disclosures of sexual abuse by the father or whilst in the father’s care.  The correct approach in considering such allegations was considered in M & M (1988) 166 CLR 69. There the High Court made it clear that when proceedings involve an allegation that a child has been sexually abused, it does not alter the paramount and ultimate issue for the Court, of the child’s best interests. The resolution of an allegation of sexual abuse is subservient and ancillary to the Court’s determination of what is in the best interests of a child.

12. At page 77, the High Court noted:

    …There will be very many cases such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place.  And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.  In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring…and assessing the magnitude of that risk.

13. The High Court then considered how to define the magnitude of the risk with great precision and concluded that the test was best expressed by saying that the court will not grant custody or access (as it then was) if it would expose a child to “an unacceptable risk of sexual abuse”.

14. The relevant standard of proof in relation to allegations of sexual abuse is the balance of probabilities. Without limiting the matters that the Court may take into account, s 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof, the Court must take into the account the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged.

15. The way this case was ultimately run on behalf of the mother, I was not asked to find that the child faced an unacceptable risk of sexual abuse in his father’s care.  By the conclusion of the hearing it was conceded on behalf of the mother that orders should be made for the child to spend time with the father, initially with the paternal grandmother in substantial attendance but eventually for such time to be without any supervision.

16. Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. 

THE ISSUES

1. The issues in this case, as identified in the parties’ affidavits, the Family Report and during the course of the hearing may be summarised as follows:-

   ·Allocation of parental responsibility;

   ·Whether the child has been sexually abused or exposed to behaviour giving rise to the sexualised behaviour exhibited by him and observed by both parents and others;

   ·Whether the child is at risk of harm in the care of the parties;

   ·With whom the child lives;

   ·With whom the child spends time and whether such time should be supervised;

   ·Whether the child’s opposition to spending time with his father is as a result of the conduct of the mother or members of her family;

   ·Whether the mother is capable of facilitating the father’s time with the child; and

   ·Whether the mother is capable of promoting the child having a meaningful relationship with the father.

2. The issues can most conveniently be discussed within the s 60CC considerations.  I will first consider the primary considerations under s 60CC(2).

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

3. As a general proposition, it is in a child’s best interests to have a meaningful relationship with both parents as well as other members of his extended family.

4. The child has lived with the mother throughout his life.  Mr EN, Family Consultant, has prepared a comprehensive and detailed report pursuant to s 62G(2) of the Act (“the Family Report”).  At paragraph 28 of the Family Report Mr EN observed that the mother is “actively involved in the children’s day-to-day care and is very proud of them.  Her description of her routine for [the child J] indicated appropriate activities and levels of care for him.”

5. Further at paragraph 63 of the Family Report Mr EN observed that the child interacted very positively with the mother, her partner and his older brother, Y.  He observed that there were:-

   instances when [the child] sought comfort and nurture from his mother at those times when he was distressed.  Her responses to him suggested emotional ‘warmth’ and availability from her towards him.  When required to do so however, she was able to provide appropriate boundaries around his behaviours.

6. Mr EN confirmed at paragraph 100 of the Family Report that those observations of the mother’s interaction with the child would suggest that his primary attachment relationship appears to be with the mother and that he views her as the primary source of physical and emotional care and nurture for him.  

7. There was no challenge to those observations as to the child’s primary attachment to the mother.  In the circumstances I am satisfied that there is benefit to the child in having a meaningful relationship with the mother. 

8. The child’s opportunity to spend time with the father throughout his life has been limited.  The child did not commence spending time with the father until he was aged approximately 10 months.  Between the ages of 10 months and two-and-a-half years the child spent time with the father in accordance with Court orders made by consent.  Since April 2012 the child’s time with the father has been disrupted, largely to due to allegations made by the mother that the child is at risk in the father’s care. 

9. By the time of the conclusion of this hearing when all witnesses had given evidence and been cross-examined, the mother’s position in relation to the father’s involvement in the child’s life had shifted such that she was prepared to adopt the proposals of the ICL with respect to the child’s time with the father.  Implicit in that approach is a concession that there is benefit to the child in having a meaningful relationship with the father.

10. At paragraph 44 of the Family Report Mr EN observed that the father was able to provide appropriate descriptions of the functioning and routines of his other children, thereby demonstrating that he is actively involved in their daily care.  Further, at paragraph 58 of the Family Report, the father’s children, R, N and Z were all observed by Mr EN to be complimentary of their father’s care and did not identify anything of a concerning nature about his role in their lives.

11. The Department of Human Services (“DHS”) had a significant role in the transition of the child Z from his mother’s care to that of the father.  Further, DHS has had significant involvement in relation to the allegations that the child J has been sexually abused or exposed to sexual behaviour when in the father’s care.  Notwithstanding those allegations, DHS has taken no action in relation to the father’s three older children continuing to live with him.

12. Having regard to those circumstances and the concession made by the mother at the conclusion of the hearing I am satisfied that the child would benefit from the opportunity of having a meaningful relationship with the father. 

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

13. In cases where there is inconsistency between the primary considerations under s 60CC(2), the Court is required pursuant to s 60CC(2A) to give greater weight to the considerations set out in sub-paragraph 2(b) than to those in sub-paragraph 2(a). 

14. Prior to the commencement of the hearing, at the heart of the mother’s case was her allegation that there is a need to protect the child from abuse and family violence when in the father’s care.  Those allegations permeated the whole of the mother’s evidence.  The starting point for those allegations was the circumstances of the child’s conception.

The allegations of rape

1. The mother alleges that the child was conceived as the result of rape.  Those allegations are contained in the mother’s trial affidavit sworn 23 July 2013 (“the mother’s trial affidavit”), particularly at paragraphs 5 to 39 inclusive of that affidavit. 

2. In those paragraphs, the mother alleged that:-

   ·she and Ms P, her mother’s neighbour and friend of the father, had planned to travel to XX with their children;

   ·en route to XX she and Ms P stopped at the home of Ms P’s brother;

   ·whilst waiting for Ms P outside the property the father arrived with his children, started chatting to the mother and indicated that he was joining the mother and Ms P at XX.  The mother knew the father to be a friend of Ms P’s, whom she had “met… on a few occasions through [Ms P]”;

   ·thereafter the mother, travelling in her own vehicle, followed the father’s car to XX;

   ·following their arrival they took their children to the beach;

   ·after dinner the mother was informed by the father that Ms P was not joining them at XX.  The mother and Y stayed with the father in his cabin at XX that evening; and

   ·later in the evening the father forced her to have sex.

3. The father denies the allegation that he forced the mother to have sex.  He alleges that the parties were in a relationship between late December 2008 or early January 2009 and February 2009.  He alleges that they planned to travel to XX together for the weekend.  He relies upon the evidence of both his friend Ms P and his mother, Ms G, in relation to these matters.

4. The paternal grandmother swore an affidavit on 9 July 2013.  At paragraph 3 of that affidavit she deposed that the parties met in late December 2008 and “shortly after they became romantically involved”.  Further she deposed that the mother began sleeping overnight in the father’s room at her home and that the mother’s son, Y, would sleep in the children’s room on those occasions.  In that affidavit the paternal grandmother also gives evidence in relation to occasions upon which she has supervised the child’s time with his father.  The paternal grandmother was cross-examined by counsel for the mother and counsel for the ICL.  During the course of her evidence she stated that she observed the development of the parties’ relationship over a six week period as follows:-

   ·the father and the mother took the children on outings to the river;

   ·the mother visited her home three to four times per week, but did not always stay;

   ·the mother ate meals at her home; and

   ·on one occasion she awoke in her home at 1.00 am, got up and observed the mother putting the child Y to bed.

5. Throughout her evidence I observed the paternal grandmother to be a truthful and forthright witness.  She presented as a concerned and loving grandparent.  I accept her evidence as to her observations of the relationship between the father and the mother.

6. Ms P swore her affidavit on 19 August 2013.  In that affidavit she deposed as to the circumstances of the parties’ relationship, including:-

   ·their meeting at her home;

   ·that both the father and the mother acknowledged to her that they were in a “romantic/sexual” relationship; and

   ·that at a barbeque at her brother’s home the mother and father announced they were going to XX together and that she was unaware of that plan and did not intend to go to XX with them.

7. With the consent of all parties it was arranged for Ms P to give her evidence by telephone link.  She was cross-examined by counsel for the mother who put to her the allegations contained in the mother’s trial affidavit as to the proposed trip to XX.  Ms P presented as open and honest.  When her account of the parties’ relationship was challenged her evidence was consistent with that contained in her affidavit.  

8. Having heard the evidence of both the paternal grandmother and Ms H, and having had the opportunity to observe the demeanour of the grandmother when giving her evidence, I am satisfied that her evidence represents an accurate account of the parties’ relationship.  Having found that the parties were in a relationship as alleged by the father, I accept the father’s evidence as to the circumstances of the child’s conception.

9. I am satisfied that at the age of 19 years and as the mother of a then three-year-old child, the mother found herself in a predicament of an unplanned pregnancy to a man with whom she had had a very short-term relationship which she did not wish to continue.  For the reasons detailed hereunder, I am satisfied that the circumstances of that predicament have greatly influenced the mother’s conduct both in respect of her allegations as to what occurred at XX, her relationship with the father, and her attitude to him spending time with the child. 

10. I am also satisfied that the mother’s allegations must have been enormously distressing to the father and greatly influenced his attitude towards the mother and those who supported her.  The distrust and hostility of the father towards the mother was at times palpable during the hearing.  I have no doubt that the roots of those emotions were established upon the mother levelling those allegations against the father.

11. Those issues were no doubt compounded by the subsequent allegations of family violence and abuse raised by the mother after the child’s birth.

12. After the evidence had concluded, counsel for the father sought to re-open his case due to a telephone call received by the father from the Police, indicating that the mother had made a statement in June 2013 regarding the alleged rape.  I granted leave for the father to re-open his case and the mother was cross-examined regarding those matters.  During her evidence the mother confirmed that she now sought to withdraw her complaint.  The ICL sought orders that the mother be restrained from discussing those matters in the presence of the child or her other children.  In light of my findings in relation to the alleged rape I am satisfied such order is appropriate.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 17 December 2013.

Associate: 

Date:  17 December 2013