Hacker and Bane
[2009] FMCAfam 199
•26 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HACKER & BANE | [2009] FMCAfam 199 |
| FAMILY LAW – Parenting –with whom child should live – allegation of risk of sexual abuse – abuse not proved – no unacceptable risk of abuse found. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAB Evidence Act 1995 (Cth), s.140(2)(b) and (c) |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 P & P [2005] FamCA 1032, (2005) FLC 93-239 (2005) 34 Fam LR 340 |
| Applicant: | MS HACKER |
| Respondent: | MR BANE |
| File Number: | PAC179 of 2008 |
| Judgment of: | Halligan FM |
| Hearing date: | 16, 17, 18 February 2009 |
| Date of Last Submission: | 18 February 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 26 March 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mulley Roth Solicitors |
| Counsel for the Respondent: | Mr Wong |
| Solicitors for the Respondent: | Lamrocks Solicitors |
| Counsel for the ICL: | Mr Perry |
| Solicitors for the ICL: | Stidwill Solicitors |
ORDERS
All prior parenting orders in relation to the child [Z] born in 2004 are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father-
(a)Each alternate weekend from 10 am Saturday until 4 pm Sunday, commencing the first weekend after the making of these orders;
(b)On Father's Day, in the event that the child is not otherwise spending time with the father, from 10 am until 4 pm;
(c)On Boxing Day from 10 am until 4 pm in 2009 and in each alternate year thereafter;
(d)On Christmas Day from 10 am until 4 pm in 2010 and in each alternate year thereafter; and
(e)Commencing in Term 1 of the 2010 school year, for one week of each NSW gazetted school holiday at the end of Terms 1, 2 and 3, from 4 pm Saturday until 4 pm the following Saturday, and for one week in the holidays at the end of the Term 4 from 4 pm Saturday until 4 pm the following Saturday, to take place in the fifth week of the holidays.
The father's time with the child is suspended as follows-
(a)For the father’s alternate weekend time under Order 4(a), during school holidays commencing in Term 1 of the 2010 school year;
(b)On Mother's Day, if the child is otherwise spending time with the father, from 10 am until 4 pm;
(c)On Christmas Day from 10 am until 4 pm in 2009 and each alternate year thereafter;
(d)On Boxing Day from 10 am until 4 pm in 2010 and each alternate hear thereafter.
For the purpose of the father spending time with the child pursuant to these orders, changeovers shall occur at the Relationships Australia Contact Service, Penrith (the Contact Service), the mother to deliver the child to the Contact Service at the commencement of the father's time with the child and the father to deliver the child to the Contact Service at the conclusion of his time with the child.
Each parent shall telephone the Contact Service on 02 4728 4802 within 24 hours of the making of these orders or of the orders coming to the attention of the parent, whichever is later, to arrange an intake interview.
Each parent shall comply with any service agreement entered into with the Contact Service and shall comply with all reasonable requests and direction of staff of the Contact Service.
Should the Contact Service not be available for changeover on any occasion, the following provisions shall apply-
(a)The father's agent shall collect the child from and return the child to the mother's agent at the [W] Police Station at the commencement and conclusion of the father's time;
(b)Neither party shall approach within 100 metres of the [W] Police Station for the period from 10 minutes before until 10 minutes after the changeover time;
(c)The agent of the parent receiving the child shall depart the police station and the vicinity of the police station immediately on receiving the child from the agent of the other parent, and the agent of the parent delivering the child shall not leave the police station within 5 minutes after the other agent and child leave.
Each parent is retrained from denigrating the other parent in the presence or hearing of the child and from permitting any other person to do so.
Each parent shall ensure the other parent is informed promptly and kept informed of any medical problems or illnesses suffered by the child while in that parent’s care.
Each parent shall do all things necessary to authorise the child’s school to provide to the father on a regular basis copies of all school reports, newsletters and other information regarding the child’s school activities.
The child’s name shall be changed to [Z] Hacker-Bane, and both parents shall do all things and sign all documents necessary to cause the child’s birth certificate to be amended accordingly within 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Hacker & Bane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 179 OF 2008
| MS HACKER |
Applicant
And
| MR BANE |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings under the Family Law Act 1975.
The applicant mother sought orders that the parties’ 4 year old son, [Z], live with her, that she have sole parental responsibility for him, and that he spend time with the father on alternate weekends during school terms from 10am Saturday to 4pm Sunday, for one week during each school holiday period, on Father's Day, and at Christmas alternating between Christmas Day and Boxing Day. The Independent Children's Lawyer proposed like orders, and further proposed that changeovers occur at a contact centre and that the father attend an anger management course. The mother supported these orders.
The father sought orders that [Z] live with him, that he have sole parental responsibility for him, and that the child spend time with the mother at a Centacare supervised contact centre each Saturday from 2pm to 6pm, during school holidays on one day per week from 2pm to 6pm, and on each Christmas Day and Boxing Day, between 2pm and 6pm in even numbered years and between 10am and 3pm in odd numbered years.
The father also sought an order to change [Z]’s last name from Hacker to Bane, which the mother and the Independent Children's Lawyer opposed. The Independent Children's Lawyer proposed that the child be known as “Hacker-Bane”, which the mother supported.
Background
The mother was born in 1969 and is aged 39. The father was born in 1974 and is aged 34. The parents were in a relationship from about February 2003 to about August 2005, but never cohabited. [Z] was born in 2004.
The mother has two other sons who are not the father's children, [X] born in 1990 aged 19 and [Y] born in 1997 aged 11.
The father married Ms B at some point after consent parenting orders were made in relation to [Z] in November 2006 and before the current proceedings were commenced in December 2007. Ms B has three daughters who are not the father's children. The father and his wife separated in about November 2008. The father suggested it may be temporary. However, Ms B did not participate in the interviews for the Family Report despite specific arrangements being made by the report writer to enable her to do so, she did not attend court for cross-examination on an affidavit by her that the father sought to rely on in his case despite being required for cross-examination by the mother, and the father conceded Ms B has not spoken to him about a reconciliation.
The previous parenting proceedings between the parties about [Z] were commenced by the father in September 2005. Those proceedings were finalised by consent orders made on the day of the final hearing,
2 November 2006. Under those orders, the parents have equal shared parental responsibility for [Z], and he lives with the mother. The orders also provided that until [Z] commences school, he spend time with the father each weekend except the fourth weekend each month and for one week in each school holiday period. The weekend time was to be from 4pm Friday to 12 noon Sunday in 2006, 4pm Friday to 4pm Sunday in 2007, and thereafter from 10am Friday until 5pm Sunday. When [Z] commences school, the 2006 orders provide that he spend time with the father during school term each alternate weekend from after school Thursday until the commencement of school Monday and for half of all school holidays. [Z] is due to commence school in 2010.
Those orders also contain provisions for spending time with each parent at Christmas, on the child’s birthday and Father's Day and Mother's Day, and provide for telephone communication between the child and the father each Wednesday evening.
The 2006 orders contain various other provisions, including as to the use of a communication book. However, neither party regularly conveyed any specific information about [Z] to the other via the communication book, and the father commenced using it to criticise the mother's alleged lifestyle choices. The book fell into disuse and the level of animosity and recrimination presently apparent between the parties make it plain that they are incapable of any constructive communication about [Z], even written communication.
On 6 June 2008, interim orders were made in these proceedings varying the changeover provisions of the 2006 orders, moving the changeover venue from the local library to the police station, requiring both parties to remain 100 metres away from the police station for ten minutes before and after changeover times, and requiring the agent of the party receiving the child to leave the police station immediately on delivery of the child and the agent of the party delivering the child to wait five minutes before leaving the police station.
On 30 July 2008, a family violence order against the father for the mother's protection made on 12 July 2006 was extended until 12 July 2010. It contains the usual statutory prohibitions and restrains the father from approaching or contacting the mother by any means, except through his legal representative or as authorised by a parenting plan or parenting order. The order also prevents the father entering specified premises that were the mother's residence, but from which she has recently moved.
The most significant issue raised in these proceedings is whether the child is at an unacceptable risk of physical or sexual abuse by the mother if in her unsupervised care. This arises from the father's allegations, denied by the mother, that the mother physically abused [X] and had a sexual relationship with [Y] from the age of 7. The implications for the child’s welfare under the various parenting proposals under consideration of the toxic relationship between the parents and the father's extremely negative view of the mother are also important issues.
The evidence
The 2006 parenting orders generally governed [Z]’s care until December 2007, when the father retained the child contrary to those orders.
The father said that on 14 December 2007, his wife picked up [Z] at the start of his time with the father, and rang the father to say that the child appeared unwell, to be “off the planet” and to be hallucinating, reaching out and grabbing things he imagined to be in front of him. The father saw the child when his wife brought him home after taking him to hospital, where his wife told him they spent three hours. By then, the child appeared to be settled.
The father said that the preceding weekend the child came to him with what appeared to be chicken pox, and that on 30 November 2007, he came to the father very drowsy with a cough and appearing to be “very unwell”. Despite expressing concern that the mother had not taken the child to the doctor since September 2007, an assertion for which the father disclosed no source of knowledge and which was not otherwise confirmed, there is no suggestion that the father or his wife took the child to the doctor on 30 November 2007. The father said they did take the child to the doctor on or about 7 December 2007 and again on
14 December 2007, but no clinical notes or other medical evidence as to any symptoms observed or any diagnosis made by a medical practitioner was put into evidence.
The father believed the mother had drugged or sedated the child inappropriately before [Z] was delivered to his wife on 14 December 2007. As mentioned, there is no evidence to support such a suggestion, despite medical attention having being sought for the child. The father sought to rely on an affidavit sworn by his wife, but failed to make her available for cross-examination. The father advanced no explanation for her absence in his evidence in chief. As mentioned, the father and his wife recently separated. The father seemed to suggest the separation had not been acrimonious and also suggested a reconciliation might be in prospect, thus negating the separation as a possible satisfactory explanation for not making her available for cross-examination. I therefore excluded her affidavit evidence.
In cross-examination, the father suggested that his wife had received a threatening phone call connected with these proceedings a few months before the hearing. He had earlier said it was because of the proceedings and matters connected with them, and the stress they generated, that he and his wife separated. He said the threatening phone call was reported to the police but no action was taken. In the absence of any evidence about the suggested phone call, the court cannot be satisfied a threatening phone call occurred. In any event, there was not a renewed application on behalf of the father to rely on his wife's affidavit after this evidence was given.
The evidence does not satisfy me that the mother drugged, sedated or otherwise inappropriately medicated the child. Nor am I satisfied on the evidence that the mother neglected the child’s health.
When the father failed to return [Z] to the mother as required under the 2006 orders on 16 December 2007, the mother sought an urgent recovery order in Penrith Local Court. In his affidavit sworn on
20 December 2007in opposition to that application, which was prepared by his then solicitor, the father said that he was so concerned at the child’s condition when he came to him on 14 December 2007 that he contacted the Department of Community Services, the police and his solicitor. He said:
“I was advised that I could take the action I took namely, refusing to return him, if there were reasonable grounds. In my view, given his health and the condition he has been delivered to me in the past months I had felt I had no alternative other than to keep him in my care until he was well enough to see his mother. I came to the conclusion that it was not safe for [Z] to return to his mother.”
The father had arranged for a letter dated 16 December 2007 to be delivered to the mother at the changeover venue on that day advising her of his intention to retain [Z]. That letter stated in part:
“My wife and I are extremely concerned for [Z]'s well-being and safety after observing ill-health and unusual behaviour over the last few weeks. On Friday 14th December after picking [Z] up we noticed he was severly affected by drugs. … Past history of neglect, abuse and violence and continual neglect and violation of your own orders that we agreed to has left me with no other choice but to take this action.” (sic)
The letter does not particularise [Z]’s “ill-health”, any “unusual behaviour”, or any “history of neglect, abuse and violence”.
The father's affidavit sworn on 20 December 2007, only four days after this letter was written, makes no reference to unusual behaviour, abuse or violence. The only allegations of neglect relate to suggestions that the child had been unwell and not taken to the doctor by the mother and that the mother had drugged or sedated the child.
On 21 December 2007, the Local Court issued a recovery order, under which [Z] was returned to the mother's care at 7pm that evening at the police station. The proceedings otherwise were transferred to this Court.
The child spent the weekend of 11 to 13 January 2008 with the father. The father again refused to return the child to the mother. On Monday 14 January 2008 the police, acting on the recovery order issued on
21 December 2007, recovered the child from the father's home.
In an affidavit sworn on 16 January 2008, and which the father prepared himself, the father said that-
·He had retained [Z] on 16 December 2007 as he was “so disturbed by (the child’s) condition”;
·“There is a long and sordid history of his mothers (sic) mistreatment of my son”;
·“Due to [Z]'s behaviour it is obvious that [Ms Hacker] ([Z]'s mother) is now poisoning [Z]'s mind and doing serious emotional damage to her own child just to get at me” (sic);
·[Z] had commenced to be violent to his step sisters when spending time with the father after being returned to the mother on 21 December 2007;
·There was a history of neglect of [Z] by the mother;
·He believed the mother was “twisting ([Z]’s) mind against me and my wife and children”;
·The mother had refused to feed the child as a baby, and the child had been found by a doctor to be malnourished;
·There is a history of violence towards the child’s paternal grandmother and the mother's other children;
·“I have witnessed an unnatural relationship between [Ms Hacker] and her middle son [Y]”, which had been described by counsellors with whom he had raised it as “of a paedophilic nature”; and
·He had “numerous affidavits in archives relating to the history of his neglect and her inappropriate behaviour and treatment of my son”.
There was no particularity to any of the father's allegations. This was the first time the father raised allegations of sexual impropriety by the mother with one of her children in family law proceedings. No such behaviour was raised by the father in the proceedings he instituted in 2005. The parenting orders that were made at the end of those proceedings, and to which the father consented, are prima facie inconsistent with any suggestion that the father at that time believed [Z] was at risk of abuse or neglect by the mother.
The father relied on two further affidavits he swore in these proceedings. In his affidavit sworn on 6 May 2008, he said that when the 2006 orders were made, he was living alone or with his mother and her partner, and although he believed he was well able to care for [Z], he did not have the facilities or support then that he had at the time of swearing his affidavit. He said he had the support of his wife, with whom he had a stable and very supportive relationship. He said his wife's three daughters regarded [Z] as their little brother and were very affectionate and supportive of him.
In the father's final affidavit, sworn on 1 July 2008, the father for the first time gave some evidence to support his allegations that the mother had an “unnatural relationship” with her son [Y] and physically abused her son [X].
The father alleged in this affidavit that he believed the mother's relationship with “her sons” to be unnatural. However, he then made allegations concerning an “unnatural relationship” in relation to [Y] alone. His evidence in chief on which he sought to make a case that the mother had a sexual relationship with her son was as follows:
“2. On numerous occasions from about the time that [Y] was 7 years old I saw [Y] in his mother's bed or with her on the sofa lounge. They would frequently be semi naked with [Y] in boxer shorts and [Ms Hacker] in a nightie or underwear. [Ms Hacker] would stroke [Y] in all areas of his torso and limbs with full body contact, with [Ms Hacker]’s head around [Y]’ neck both kissing and fondling each other.
3. [Y] would also return affections towards his mother who seemed to encourage it. It generally seemed natural to [Y] to perform what appeared his mother desire (sic) and these strange events took place regardless of my presence.
4. On one occasion I witnessed [Y] mounting his mother's leg in the form of a dog and rubbing himself up and down her leg. Although I did not think this appropriate [Ms Hacker] clearly made light of it, laughed and did not resist or discourage the behaviour.
5. On numerous occasions, I also saw [Ms Hacker] half naked in nightie (sic) or underpants parade in front of [Y] and his friends. On such occasions [Y] would also be barely dressed in only boxer shorts.
6. Their relationship, to me, appeared to be more like a husband and wife relationship or a boyfriend and girlfriend relationship than of mother and son.”
In this affidavit the father also alleged that on one occasion, after a fight between the mother's two eldest sons, [X] and [Y], the mother hit into [X] repeatedly with closed fists. He said he intervened and stopped the mother.
Also in this affidavit, the father said that while spending time with the child, he had recently commenced to find [Z] “hiding or in a quiet place stroking his penis as if masturbating”, and when they have been at church or other peoples’ places, [Z] has been “exposing himself to my wife's daughters in a lurid and provocative manner”.
The father was extensively cross-examined about his sexual abuse allegations, including why he failed to raise it as an issue in the earlier parenting proceedings, and to seek greater particularity as to what the father observed and when and in what circumstances he observed it.
The father explained his failure to raise his allegations in the earlier proceedings as being at the direction and under the control of his then solicitors. He said they advised him he could not prove his allegations and risked losing the child if he made the allegations, so he was not to raise the allegations. He said he wanted to include the allegations in his affidavits, but his solicitors controlled the content of those affidavits, and that if no mention of his allegations was made in those affidavits, it was not by his hand. He said he was also told by his solicitor that his health was such that he should not go into the witness box, as he would appear “angry and wild”. When asked why he did not tell the Family Consultant at his interview for the Family Report in the earlier parenting proceedings about his allegations, he said he could not recall whether he had raised it but there were times when his solicitors told him not to say anything.
However, having given this evidence, the father then asserted that he had raised his allegations of the mother sleeping with [Y] and of the mother physically abusing [X] in his affidavits in the earlier parenting proceedings. No such affidavits were put in evidence before me.
In fact, the father swore and filed an affidavit in the previous parenting proceedings that he prepared himself, without a lawyer. The form specifically requested information about any allegations of child abuse, and no mention of abuse was made. The father did include allegations about aggressiveness and mental instability, but made no allegation about child abuse of any kind. He said that was because he did not know how to fill out the form.
The father was clearly discomforted by the cross-examination on this document. When the document was initially shown to him, he complained that counsel was intimidating him. Counsel was speaking in calm and measured tones and was not being in any way aggressive in his questioning, much less intimidatory. The father remained quite hostile and agitated during this passage of cross-examination, and became agitated and angry at subsequent points of cross-examination by the mother’s counsel, despite the court adjourning twice in short order for the father to compose himself. On occasions he literally spoke through gritted teeth, and on occasions his tone, demeanour and language were threatening. If anyone was intimidating during the father’s cross-examination by the mother's counsel, it was the father.
The fact of this affidavit in the earlier proceedings is completely inconsistent with his claimed reason for not then raising the issue of child abuse. I do not accept his claim that he did not know how to fill out the form. He had no difficulty including allegations of aggressiveness and mental instability. He could just as easily have said something about child abuse.
In any event, I find it difficult to reconcile the picture the father sought to paint of being overborne by his lawyers not to mention his protective concerns for the child in the previous proceedings despite wanting to do so with-
·the vehemence and assertiveness with which the father expressed his views of the mother and the serious risk he suggested she posed to the child;
·his insistence on saying what he wanted to say in court, both in the witness box and from the body of the court, sometimes despite advice from his solicitor;
·his admitted outburst in the Local Court in the AVO proceedings against his wife when he thought she was not being treated fairly; and,
·his admitted lack of impulse control, particularly around this issue of alleged sexual abuse of [Y] by the mother, illustrated by his verbal abuse of a witness in the mother's case outside the courtroom during an adjournment in the hearing before me, when he called her a paedophile too because she was present to support the mother and her case.
When cross-examined for more particularity about his allegations against the mother, the father said “on many occasions” he observed the mother rubbing [Y], and saw the mother and [Y] in bed semi-naked rubbing each other all over. He added that he was not alleging “penetration”. He said he could not accept that there could ever be an innocent explanation to what he saw. He also said that as a result of suffering chronic fatigue syndrome, his memory was not very good, so he had difficulty remembering when any particular incident may have occurred.
The father said in cross-examination that it was only towards the end of his relationship with the mother that he realised how “in depth” the problem was. He said there was no great change over time in the interaction between the mother and [Y], that the mother slept with [Y] all the time and stroked him up and down.
When cross-examined about his allegations of the mother parading semi-naked in front of [Y] and his friends, he said the mother would come out in her underwear and “strut” around. He said the mother has teenage boys in her home to whom she gives cigarettes, an allegation not previously raised. When asked what friends of [Y] were present when the mother paraded in front of them, the father said his solicitor made a mistake in the father's affidavit, it was only in front of [Y]. The father said he noticed the error before swearing the affidavit but did not correct the error because he could not bother with the crossing of all the “t’s”. He thus admitted knowingly swearing an inaccurate affidavit.
When the father contends he first saw a display of the “unnatural relationship” between the mother and [Y] is quite unclear on his evidence. He said [Y] was about seven or closer to eight when he first saw it, and that soon after he raised his concerns with the maternal grandmother, referring to concerns for his son in the mother's womb. Thus, the father must be contending he first observed this behaviour between [Y] and the mother when [Y] was only six, he turning seven a few months after [Z]’s birth. However, he then said that the behaviour he observed between the mother and [Y] did not concern him until after [Z] was born, contradicting what he claimed to have said to the maternal grandmother when he raised it with her.
In further cross-examination, the father said that [Y] spent time in the mother's bed regularly from when he first met the mother. The relationship between the parents, he said, commenced in February 2003, at which time [Y] was only five. The father said that what he referred to as “the thick of it” occurred just before he left the mother, when he observed the mother and [Y] in bed “far from natural”. It was then, he said, that he saw “the full degree”. The “thick of it” that he referred to was at the end of their relationship, and involved two or three incidents that he thought were “overboard”. By the “thick of it” the father said he was referring to [Y] stroking the mother around the breasts and torso and she stroking him. He said that what he described in paragraph 2 of his last affidavit is what he was referring to, and it occurred on two or three occasions towards the end of their relationship, that is in the period leading up to August 2005. [Y] was eight when the parties separated.
There is thus an inconsistency between the father's affidavit evidence and his oral evidence, his affidavit stating that the behaviours he said in cross-examination occurred on two or three occasions in fact occurred “on numerous occasions” or “frequently”. Nor does the affidavit evidence suggesting that the behaviours he said concerned him occurred consistently from when [Y] was seven sit well with his oral evidence that the nature or seriousness of the observed behaviours changed and became worse over time. His oral evidence fails to explain in what way the observed behaviours changed over time to make him so concerned that he sought to remove the child from the mother's care in August 2005 but did not do so when he first observed the “unnatural relationship” at least a year earlier.
The mother, in cross-examination about the father's allegations of an “unnatural relationship” between her and [Y], said that she may have “caressed” [Y]’s torso and hips to apply sunscreen or a lotion, but could not recollect any specific incident that might be what the father interpreted as her caressing the boy and he caressing her in a sexual manner.
The mother denied ever encouraging [Y] to stroke her in a sexual way, or to rub his genitalia up and down her leg. She denied that when [Y] was 7 it was her practice to sleep in the same bed with him, and she denied doing so now. She denied walking around scantily clad in front of [Y] and his friends, denied that [Y] had attempted to “mount” her leg, or that [Y] had exhibited this type of behaviour or mimicked sexual intercourse. She said she had never witnessed [Z] masturbating, or pulling his penis out of his pants.
The Family Consultant did not express any view about the credibility of the father's allegations of the mother sexually abusing [Y]. He expressed the opinion in the Family Report that if the court found that the mother sexually abused [Y], [Z] clearly would be at risk in her care. He observed that in his opinion, if [Z]’s care had been threatened by neglect or abuse, then his behaviour and emotional security, and the shape of his interaction with significant adults, would be affected. To the Family Consultant’s observation and in his opinion, [Z]’s behaviour and interaction with both parents was unremarkable and no indication of disturbed behaviour was apparent. The Family Consultant was not challenged on this evidence and I accept it.
When the father's evidence of the child’s alleged masturbatory behaviour was put to him, the Family Consultant said that between ages 3 and 5, children have a natural interest in their genitalia. He said that while such behaviour might be consistent with a child having observed adult sexual activity, in isolation it is likely to be innocent. He was not asked whether the adult sexual activity to which he was referring included the type of behaviour the father alleged he observed between the mother and [Y].
The father's extreme attitude towards the mother is encapsulated in his evidence in cross-examination that after the court hearing, he did not want to have to deal with the mother again. The only communication in the future he wanted, if any communication was necessary, was in writing or by phone through his mother. He said it was wholly impractical for him and the mother to have a conversation on anything. He said that if [Z] were to live primarily with him, he would consult the mother about the child’s schooling, etc, but did not want any contact with the mother or her associates.
In cross-examination the father denied calling the mother a bitch, saying he in fact called her a pig, which he volunteered is what she is in his opinion. He admitted calling the mother a paedophile in a public street when the mother had [Z] and [Y] with her. He also admitted doing so when the police recovered [Z] from him on 14 January 2008. He admitted saying “paedophiles” as he walked past a female witness in the mother's case outside the courtroom during an adjournment of the proceedings. He said anyone who supported the mother was as guilty as she was. This apparently extends to legal representatives for the mother, one of whom the father threatened at the local court when the AVO proceedings against his wife were listed.
In relation to [Z]’s last name, the father said he was not consulted by the mother before his birth was registered. He said his wife had taken his last name, as had her daughters of their own volition, and it would benefit [Z] to have the same last name as he, his wife and step daughters as it would give him a sense of identity and belonging with his father and step sisters, particularly if he is to live with them. This argument in favour of the change of name the father seeks is no longer relevant, as the father and his wife have separated, and there is no evidence to suggest a reconciliation is likely. I note the father's wife was not prepared to attend court to support him in any way, even when required to attend for cross-examination on her affidavit sworn in the father's case before they separated.
The mother's evidence is that she had the father complete his details and sign the form for registering [Z]’s birth before she filled out the child’s details. She said they discussed his last name and agreed it should be “Hacker-Bane”. The father denied any such agreement. However, she then completed the child’s details giving his last name as Hacker without further consulting the father and lodged the birth registration form. On her own evidence, the mother was deceitful in her actions, and this casts some doubt on her honesty.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about this child, so s.65DAB is not relevant.
Section 60B sets out the objects of Part VII and the principles underlying it. In deciding what parenting order to make, the child’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the court determines the child's best interests.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act … and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order, the court must consider the child spending equal time with each parent, and if such an order is not to be made, must consider the child spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the court must consider whether such an arrangement would be in the child's best interests (s.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)). As to the court’s power to consider options other than those presented by the parties, and the need to afford procedural fairness if doing so, see U & U [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, KB & TC [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, P & P [2005] FamCA 1032, (2005) FLC 93-239, (2005) 34 Fam LR 340.
Where, as here, the court is asked to severely restrict a parent’s involvement with a child on the basis of allegations of sexual impropriety between the parent and a child, the court must pay careful attention to the guidance provided by authoritative decisions that bind it. Brown J, in McCoy v Wessex [2007] FamCA 489 at [22] – [40], (2007)38 Fam LR 513 at 518 – 524, has set out the relevant legal principles in deciding a case such as this, and the authorities from which these principles derive. The following summary of the relevant principles draws on her Honour’s useful exposition of the law.
The paramount consideration always remains the child’s best interests. While resolution of contested allegations of abuse of a child by a parent will have an important, and sometimes a decisive, impact on the resolution of what is in the child’s best interests, the resolution of an abuse allegation is subservient and ancillary to the determination of what is in the child’s best interests. (M & M, (1988) 166 CLR 69, 82 ALR 577, 12 Fam LR 606, (1988) FLC 91-979).
While the standard of proof of matters of fact in parenting proceedings is satisfaction on the balance of probabilities, before making a finding that a parent has abused a child, the court must have regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged (s.140(2)(b) and (c), Evidence Act 1995 (Cth)).
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences” (Briginshaw & Briginshaw (1938) 60 CLR 336, per Dixon J at 362, cited with approval in relation to sexual abuse allegations in parenting proceedings in M & M above). Before making a positive finding of actual abuse, the standard of proof to be applied “must be towards the strictest end of the civil spectrum” (WK & SR (1997) 22 Fam LR 592 at 603, (1997) FLC 92-787 at 84,694).
“Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation” (N & S (1995) 19 Fam LR 837 at 856, (1996) FLC 92-655 at 82,711).
The court is not under the same duty as a criminal court to resolve in a definitive way disputed allegations of sexual abuse raised in parenting proceedings (M & M above).
Consistent with the paramountcy of the best interests of the child, where abuse allegations are raised in parenting proceedings, the issue is whether a particular parenting proposal exposes the child to an unacceptable risk of harm (M & M above).
The unacceptable risk test is used to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from a relationship with the parent against whom an abuse allegation is made. A finding of unacceptable risk is a finding that the risk of harm to the child in spending time with a parent outweighs the possible benefits to the child of doing so (B & B (1993) 16 Fam LR 353, (1993) FLC 92-357).
“The essential importance of the unacceptable risk question … is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?” (N & S above, Fam LR at 860, FLC at 82,713 – 82,714, cited with approval by the Full Court in Napier & Hepburn (2006) 36 Fam LR 395 at 405 – 406, (2006) FLC 93-303 at 81,115).
This is not a catalogue of the correct questions to be addressed. Nor is this a quantitative assessment, whether there is an unacceptable risk being determined by the relative number of negative or positive answers to these and similar questions. Rather, matters such as these must be considered and evaluated qualitatively, with an assessment of the relative weight to be attached to each in the circumstances of the particular case. (Ibid).
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
There is no doubt the child can benefit greatly from having a meaningful relationship with both his parents. However, the issues raised in this case call for a consideration of whether spending the time with each of the parents necessary to develop and nurture such a relationship may expose the child to an unacceptable risk of physical and sexual abuse by the mother, as the father contends, and whether exposing the child to the father’s extremely negative opinion of the mother may interfere with or prevent a meaningful relationship between mother and son. These in reality are the crucial, though not the only relevant, issues in this case.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As mentioned, it is the father's case that [Z] is at risk of physical and sexual abuse in the mother’s unsupervised care. He bases the concern about a risk of sexual abuse on his contention that he observed interaction between the mother and her middle child, [Y], from about the age of 7, that he termed an “unnatural relationship” and which he said others to whom he had related what he said he observed had described as “paedophilic”. I understand he bases his concern at a risk of physical abuse on his contention that he observed the mother beat her eldest son with her fists on one occasion, and that on one occasion the mother attempted to physically wrestle [Z] from him. The mother denies the father's allegations against her.
I am not satisfied the mother behaved inappropriately with her son [Y]. The father's evidence of inappropriate behaviour was vague and inconsistent. He failed to raise the allegations in the prior parenting proceedings, and his explanations for not doing so are either demonstrably false or not credible. The mother has not been shaken in her denials of the father’s allegations, despite the credibility issue raised by her deceptive registration of the child’s birth, and she has proffered some innocent explanation for at least part of the alleged inappropriate behaviour.
Demonstrations of affection between a mother and child are quite normal and natural, and are beneficial to the child. The father's evidence suggesting that demonstrations of affection between [Y] and the mother were sexualised and unnatural is simply not credible.
I am not satisfied there is an unacceptable risk of sexual abuse of [Z] in the mother's unsupervised care. I consider the father's allegations of inappropriate conduct between the mother and [Y], upon which any risk of sexual abuse of [Z] must be assessed, to be so lacking in credence and credibility as to warrant no weight in assessing such a risk to [Z].
Nor am I satisfied the mother physically abused [X]. The mother denied the father's allegations, and was not shaken in cross-examination, despite the credibility issue raised by her deceptive registration of the child’s birth. The unsatisfactory nature of much of the father's evidence of suggested sexual abuse of [Y], and his admission that he knowingly swore an incorrect affidavit leave me with a very poor opinion of the father's credit.
The only matter about which protective concerns for [Z] genuinely arise in my view is an incident when the parents argued and contested physical possession of the child. The parents gave conflicting versions of this incident, and I am unable to determine where the truth lies with certainty. However, I am satisfied that the father's attempts to place the sole responsibility for this incident on the mother are unjustified, and flow from the father's narrow and rigid attitude. The incident was serious enough that the police and ambulance were called, the police removed the child from both parents because of concerns the child may have been physically abused, and the child was conveyed to hospital for his physical wellbeing to be checked. The child remained in the care of the Department of Community Services for a few days and was then returned to the parents.
This incident, I am satisfied, reflects little credit on either parent. I am satisfied it would never have occurred if one of them had placed the child’s interests above his or her desire to prevail in the conflict between the parents. It demonstrates the extent to which the personal conflict between the parents blinds them both to the child’s needs.
The evidence does not satisfy me that the mother alone was responsible for this incident, or that it was the mother alone who caused the bruising to the child noted by police and ambulance officers who conveyed the child to hospital. If the parents can be kept apart, I am satisfied there is little if any risk of a recurrence of this type of incident. In any event, I find the child would be as much at risk from the father as from the mother in such an incident.
As with the risk of sexual abuse, and for the foregoing reasons, I am not satisfied there is an unacceptable risk of physical abuse of [Z] in the mother's unsupervised care.
There has been at least one instance of family violence by the father on the mother. On 25 October 2006, the father was convicted on two counts of assault occasioning actual bodily harm, the mother being the victim. The father has verbally abused the mother when the child has been present. The father has an extremely negative view of the mother and an admitted impulse control issue in relation to his extreme animosity to her. There is thus a risk of exposure of the child to family violence unless the need for the parties to come into contact with each other under any orders that might be made is removed.
I am not satisfied that other evidence in either party’s case otherwise raises any genuine protective concerns for the child.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The child was briefly interviewed by the Family Consultant. His reported statements together with his observed interactions with the parents suggest the child values his relationship with both parents.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The child was observed by the Family Consultant to interact warmly with both parents. I am satisfied the child has a close relationship with both parents, but that it is likely he has a stronger relationship with the mother, who has been his primary carer from birth. [Z] also has a close relationship with his half sibling, [Y].
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
and
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The provisions of s.60CC(4) and (4A) are applicable to a consideration of these two matters.
The fact the child has been able to develop and maintain close relationships with both parents, despite the depth of animosity between the parents, is in one sense remarkable. However, the child reported to the Family Consultant that his mother does not like his father and his father does not like his mother. This suggests both parents have exposed the child to the parental conflict, which is emotionally harmful to him and potentially destructive or disruptive of the child’s relationship with the other parent.
As the Family Consultant said, as young as he is, [Z] is aware of the parental dispute, and this “is beginning to affect him, and will give rise to emotional problems for him as he grows”. The Family Consultant continued-
“[Z] will need to resolve emotional conflict relating to a growing sense of divided loyalties. It was apparent that the child has a loving and affectionate relationship with both parents. When interviewed, he spoke positively of each, but then declared that he loves his mother and does not love his father. It was therefore apparent that he may come to reject his father in an attempt to deal with the incongruence of having parents who love him, yet remain in significant and obvious conflict over him.”
I should add that [Z]’s comment to the Family Consultant of loving his mother but not his father was made immediately after telling the Family Consultant that he would go to “Mummy and Daddy” if he had a bad dream or hurt his finger.
The father's retention of the child twice contrary to the prior orders is relevant under these considerations, as is his verbal abuse of the mother in front of the child. So too is the depth of the father's enmity for the mother, his statement that he never wished to hear the mother’s name in his home, and his insistence that whatever the findings in this case, he knows that the mother has abused [Y] and [Z] is at risk of similar abuse. There is in my view a very real risk in this case that the father will, intentionally or otherwise, expose the child to his views of the mother, and thus harm his relationship with her.
However, the child’s statement to the Family Consultant that each of his parents does not like the other suggests the child has been exposed to both parent’s feelings towards the other, and on balance, I assess these related considerations as neutral.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The father's proposals will remove the child from the care of the parent with whom he has the closer bond. The very limited supervised time he proposes will severely impact of the maintenance of the child’s close relationship with the mother. I am not satisfied that there is any real risk of physical or sexual abuse of the child in the mother's unsupervised care, much less such a level of risk of harm from abuse that it outweighs the harm to the child a significant curtailment in his relationship with the mother would cause.
I also note that the father's proposal would significantly reduce the opportunity for [Z] to spend time with his half sibling [Y], with whom the Family Consultant opined he had a close relationship.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This consideration is not relevant.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The father's retention of the child twice in quick succession contrary to the first parenting orders, and even after a recovery order had issued, necessitating the intervention of the police on the second occasion, causes concern at the father's appreciation of the child’s needs. He justified his action as I understand it by suggesting he was acting to protect the child from immediate risk of harm, but I am not satisfied any such risk existed.
I am also concerned at the father's suggestion that shouting abuse at the mother in the child’s presence would not affect the child because he would not know what the words meant. The abuse was not uttered in a normal, calm speaking voice, but was shouted with much feeling. The father seems either unwilling or unable to appreciate that communication may be non-verbal. The tone, volume and intonation of what is said, together with facial expressions and other body language can convey very readily to a child a parent’s demeanour and attitude towards another even if the words spoken are outside the child’s vocabulary.
Similarly, the father's contention that there is no denigration of the mother to or in the child’s presence in his home because he will not have the mother’s name mentioned to him, adding that the child never mentions his mother when with him, shows a concerning lack of insight into the potential effect of his behaviour on the child’s wellbeing. It is quite unnatural for a child not to be able to speak of one parent to the other. The fact the child does not mention the mother when with the father does not, as the father seemed to suggest, necessarily mean that she never crosses his mind when with the father. Rather, I am satisfied it is more likely that it indicates that it is not necessary for the father to overtly tell the child he is not to mention the mother to him, and that the child has picked up on the father's attitude to his mother, and for this reason feels unable to mention her to the father.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have elsewhere dealt with the matters relevant under this consideration, including the relevance of the child’s age and stage of development in providing an innocent explanation, in the opinion of the Family Consultant, to the child’s suggested preoccupation with his genitalia. I accept the opinion of the Family Consultant.
(j) Any family violence involving the child or a member of the child’s family and
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
I have already dealt with these matters.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It does not appear that one order under consideration is less likely than another to lead to further proceedings.
Decision
I will deal with the issues of parental responsibility, with whom the child should live, the time the child should spend with the other parent, the child’s name and other orders sought separately.
Parental responsibility
I am satisfied there has been family violence by the father on the mother, and hence s.61DA does not apply (s.61DA(2)).
I am satisfied that the parents’ inability to communicate is so extreme and deep-seated, that an order for equal shared parental responsibility could not work. It would force the parents to communicate, and this would in my view simply expose the child to the parental conflict and be emotionally abusive of him. They are unlikely to be able to compromise in the event of a difference of opinion, and this may jeopardise the child. There has already been significant disputation about whether or not the child should receive his usual childhood immunisations, the mother supporting them and the father opposing them because of a pamphlet he received in his letter box suggesting they were not effective in providing the protection they were supposed to provide.
I am satisfied that it would be in the child’s best interests for the parent with whom the child primarily lives to have sole parental responsibility for him.
With whom the child should live
I am not satisfied there is any risk of sexual or physical abuse of the child in the mother's care. I am satisfied the child has a stronger attachment to the mother. I am satisfied the mother has well met the child’s needs in the past, and is better able to appreciate his needs and to meet them.
The child has a close and loving relationship with the father, and that has been established through parenting arrangements of the child living primarily with the mother and spending time with the father. Hence I am satisfied such an arrangement will provide the child the opportunity of a meaningful relationship with the father, provided the child can be shielded from the ongoing parental conflict.
I am concerned at the father's inability to appreciate the potential adverse effects on the child of his behaviour. I am concerned that if the child lived with the father, the child would be exposed for significant periods of time to his extreme and rigid views about the mother being evil and a paedophile, and the child being at risk of abuse from the mother, potentially placing the child’s relationship with the mother in jeopardy. Living with the father would also jeopardise [Z]’s relationship with [Y], his half sibling.
I am satisfied it is in [Z]’s best interests to remain living with the mother. Consequently, she should have sole parental responsibility for him.
The time the child should spend with the father
The mother and the Independent Children's Lawyer propose that the father spend time with the child from 10am Saturday to 4pm Sunday each alternate weekend, for 1 week in each of the school holidays, and on special days, with changeovers to occur at the Penrith Contact Centre. If unsuccessful in his application that the child live with him, the father seeks that the current orders for spending time remain.
Under the existing orders, the father spends time with the child in 2009 each weekend, except the fourth weekend each month, from 10am Friday until 5pm Sunday, and for one week in each school holiday period. The existing orders provide that from the commencement of school, which will be in 2010, the father spend time with the child during school term each alternate weekend from after school Thursday until the commencement of school Monday and for half of all school holidays. Those orders also contain provisions for spending time with each parent at Christmas, on the child’s birthday and Father's Day and Mother's Day, and provide for telephone communication between the child and the father each Wednesday evening.
The Family Consultant recommended that if the court determined that the child is not at risk of abuse with the mother, the present arrangements should continue, but the opinion of a mental health expert should be sought, inter alia, to inform the court on the parents’ emotional stability. Unfortunately, neither of the parties could afford to appoint a mental health expert, and the Legal Aid Commission declined to fund the Independent Children's Lawyer to appoint a mental health expert.
The Family Consultant expressed concerns that if it were found that the father's sexual abuse allegations were contrived, the continued involvement of the father with the child may serve to damage the child, and it was possible the father may use other destructive strategies to “appropriate” his son. While I have found that no weight can be attached to the father's allegations, I accept that he is convinced now that the mother had a sexual relationship with [Y] and there is a risk of sexual abuse of [Z]. I am satisfied it is highly unlikely he held any such concerns during the currency of the previous parenting proceedings. The Family Consultant expressed the view that if that was my finding, he did not think the father would ever let it rest. He was unable to predict what the father's behaviour might be in these circumstances, which he termed being out of touch with reality.
Thus, the court is left with evidence raising some potentially disturbing issues as to the possible ramifications of certain findings, which I have now made, but lacks the expert evidence necessary to fully resolve those issues.
The father said in cross-examination that if I was not satisfied of his allegations, he would have to accept my decision, but he knew what happened. There must be some concern on the evidence as it stands that in light of my findings, the father may inappropriately involve the child in actions he may take either in consequence of, or to further ventilate, his contention that the child is at risk of abuse. Nonetheless, both the Independent Children's Lawyer and the mother propose that the father continue to have regular time with the child, albeit slightly less time than under the existing orders.
Another issue relevant to the time the child should spend with the father is the total inability of the parents to communicate about the child. If the child spent time with the father from after school Thursday until the commencement of school on Monday when the child commences school, as the current orders provide and the father seeks, there is a real risk that necessary school information will not be passed by one parent to the other, potentially causing difficulties for the child’s schooling.
I note the close and loving relationship the child has with the father. Any significant curtailment of the father's time with the child would thus have a considerable adverse effect on the child in damaging or destroying a relationship with the father that is of considerable benefit and value to the child.
For these reasons, I am satisfied that the orders proposed by the mother and the Independent Children's Lawyer are in the child’s best interests. They will provide an appropriate opportunity for the close relationship between father and son to continue, but will somewhat lessen the duration of the child’s regular exposure to the father and his potentially toxic views of the mother.
It is in my view essential for the child’s welfare that he be shielded as much as possible from the parental conflict, and that this requires that the parents not come into direct contact for the child to pass between them. I am satisfied that the best means of achieving this is through a contact centre, as proposed by the mother and the Independent Children's Lawyer. If the contact centre is not available for any reason for changeover, then arrangements similar to those under the interim orders made on 6 June 2008 should operate to ensure there is no contact between the parents.
Child’s name
I am satisfied that it would be in the child’s best interests to bear the last name of both his parents, in the manner proposed by the Independent Children's Lawyer. I am concerned that the father's reasons for changing the child’s name, at least those that remain after his separation from his wife, suggest a proprietorial attitude by the father towards the child. But if the child is to bear the name of only one of his parents, the rhetorical question may be asked why is one parent’s name better than the other’s? The father has failed to demonstrate any reason by reference to the child’s interests why the child should bear his name alone. If the child bears both his parents’ last names, it will facilitate the child’s ongoing identity with both his parents.
Other orders
The Independent Children's Lawyer proposed an order that the father attend an anger management course. The father indicated that if ordered to attend, he would do so.
The Family Consultant was of the opinion that the father needs rather more than an anger management course. He suggested the father needs help to focus on his parenting, something outside the parameters of an anger management course. He suggested six or seven sessions of cognitive behaviour therapy might help, provided the father genuinely accepted participation and was open to help.
I was not asked to order cognitive behaviour therapy, nor is there evidence the father would genuinely and openly embrace such therapy, what it would cost, whether the father could afford it, and where or from whom such therapy may be available. In my view, it would therefore be inappropriate to order such an intervention.
Having regard to the opinion of the Family Consultant, which I accept, that it is something much more than anger management that the father should attend, I am not satisfied participation in anger management is appropriate and I decline to make the order.
I am satisfied that the other consequential orders proposed by the Independent Children's Lawyer should be made
Conclusion
I will therefore make the orders as sought by the Independent Children's Lawyer, except for paragraphs 8, 9 and 10 of the Minute of Order in which they are set out.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 26 March 2009
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