HAWKINS & DUFFY

[2016] FCCA 1157

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAWKINS & DUFFY [2016] FCCA 1157

Catchwords:
FAMILY LAW – Entrenched parenting dispute about 7 year old child – parents only in relationship for a very brief period of time – extremely poor interaction between parents – child alleging serious assaults by father and on one occasion, a paternal aunt – mother believing child’s disclosures – father believing disclosures fabricated by mother – Court strongly invited by family consultant to make factual findings if possible – finding that father has not assaulted child – finding that child nonetheless has made disclosures to the mother – family consultant recommending more time with father if assaults did not occur – orders made largely consistent with family consultant’s recommendations.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:
Goode v Goode [2006] FamCA 1346

Applicant: MR HAWKINS

Respondent: MS DUFFY

File Number: MLC 8389 of 2009

Judgment of: Judge Burchardt

Hearing dates: 18, 21, 22, 23 & 24 March 2016

Date of Last Submission: 24 March 2016

Delivered at: Melbourne

Delivered on: 1 June 2016

REPRESENTATION

Counsel for the Applicant: Ms Dellidis

Solicitors for the Applicant: Blackwood Family Lawyers

Counsel for the Respondent: Ms Tulloch

Solicitors for the Respondent: Mills Oakley Lawyers

Counsel for the Independent Children’s Lawyer: Mr Whitchurch

Solicitors for the Independent Children’s Lawyer: Kenna Teasdale Lawyers

FINAL ORDERS

(AMENDED IN ACCORDANCE WITH CONSENT MINUTES)

1. That all previous parenting Orders be discharged.

2. That the parents have equal shared parental responsibility for the child X (“X”) born (omitted) 2008.

3. That X live with the mother.

4. That X spend time with the Father:

   (a)On each alternate weekend from the conclusion of school Friday to the commencement of school Monday, or the next school day if Monday is a non-school day commencing 10 June 2016;

   (b)In every other week, from the conclusion of school Thursday to the commencement of school Friday commencing 2 June 2016;

   (c)For one half of all school term holiday periods as agreed but failing agreement:

   (i)In even numbered years, for the first half of the holidays, from the conclusion of school on the last day of term until 12 Noon on the middle Saturday of the said holidays;

   (ii)In odd numbered years for the second half of the said holidays commencing at 12 Noon on the middle Saturday of the holidays and concluding at the commencement of school the following term.

   (d)For one half of the long summer holidays each year at times to be agreed and failing agreement:

   (i)In even numbered years from 9:00am on the first Saturday of the said holidays to 9:00am on the following Saturday and each alternate week thereafter.

   (ii)In odd numbered years from 9:00am on the first Saturday of the said holidays to 9:00am on the following Saturday and each alternate week thereafter;

   (e)For Father’s Day each year, from 5:00pm on the day prior to Father’s Day to the commencement of school the following Monday, with the father’s time with X to be suspended for the same period on Mother’s Day weekend each year.

   (f)For Christmas in even numbered years, from 9:00am on Christmas Eve to 12 Noon on Christmas Day, with the father’s time to be suspended from 12 Noon Christmas Day to 5:00pm Boxing Day and in odd numbered years from 12 Noon Christmas Day to 5:00pm Boxing Day, with the father’s time to be suspended from 9:00am Christmas Eve to 12:00 Noon Christmas Day.

   (g)Such further and other times as agreed between the parties.

5. The time set out in order 4 shall, in the first two months thereof, be subject to the substantial attendance of at least one of Ms T, Ms D and Ms H.

6. That the father’s time pursuant to paragraphs 4(a) and (b) herein be suspended during all school holiday periods and recommence thereafter as if the suspension had not occurred.

7. That as far as practicable changeover shall occur at X’s school, otherwise the party with the care of X shall deliver X to the party whose care of X is commencing.

8. That each party shall as soon as practicable advise the other of any accident or illness suffered by X while he is in their respective care, including details of any treating health professional and shall authorise such treating health professional to communicate with the other parent regarding the child’s health.

9. That both parties be hereby authorised to obtain from X’s school at their own expense if applicable, copies of all newsletters, reports, school photo order forms and any other documents to which parents are usually entitled.

10. That both parties are permitted to attend all school events which ordinarily involve attendance by parents regardless of whether X is in their care at the time of the event.

11. That neither party shall enrol X in any extracurricular activity which coincides with the care of the other party without that parent’s written consent.

12. That both parties shall ensure that X attends at all extra-curricular activities that coincide with their care of X.

13. That each party shall keep the other informed of his or her current residential address and email address and advise the other of any change to these details in writing as soon as practicable and no later than within seven days of such change taking place.

14. Pursuant to section 65L of the Family Law Act1975, for a period of 12 months from the date of these Orders:

    (a)Compliance with the parenting Orders made in these proceedings is to be supervised by a psychologist nominated by the Independent Children’s Lawyer following consultation with Mr V (“the nominated person”) with the parties to equally share the cost of same.

    (b)Each party be at liberty to request assistance from the nominated person in relation to compliance with and the carrying out of the parenting Orders.

    (c)The parties provide all requested documents to the nominated person attend all scheduled appointments and ensure X attends all appointments as are reasonably requested.

    (d)The nominated person be authorised to discuss the matter with Mr V and to receive a copy of Mr V sworn 10 March 2016 and a copy of the Reasons for Judgment and Orders made 1 June 2016.

15. The parties attend upon a therapist nominated by the Independent Children’s Lawyer following consultation with Mr V for the purpose of family counselling and the costs of same be shared equally between the mother and father.

16. The parties be at liberty to provide a copy of the Orders of 1 June 2016 together with the Reasons for Judgment to:

    (a)Victoria Police;

    (b)The Magistrates’ Court in relation to Intervention Order proceedings case number (omitted); and

    (c)Mr V

    provided that:

    I.Any person receiving the said documents shall not publish in a newspaper or periodical publication by radio broadcast or television or by other electronic means or otherwise disseminate to the public or to a section of the public by any means any account of those documents and;

    II.The party who provides the said documents shall also forthwith serve upon the other party a copy of all such documents provided.

17. That the parties shall be at liberty to provide a copy of the orders made 1 June 2016 to:

    (a)X’s school;

    (b)X’s medical practitioners and healthcare providers; and

    (c)Any provider of extra-curricular activities to X.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8389 of 2009

MR HAWKINS

Applicant

And

MS DUFFY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding is about the best interests of a child, X, born (omitted) 2008.  Both his parents love X but unfortunately they detest one another.  The issues in the case ranged far and wide but the parties’ competing positions really boiled down to the following propositions.  The mother genuinely believes that the father is a brutal ogre who deliberately and violently assaults X from time to time when he is in his care.  The mother’s florid accusations even extend to an assertion of an assault by a paternal aunt and connivance at assault by the paternal grandmother.  By way of contrast, the father genuinely believes that the mother coaches X and/or invents histories of the alleged assaults as an act of spite to hinder his relationship with X.

2. For the reasons that follow, I do not accept either of these two primary contentions.  Given the intensity of the parties’ beliefs, however, the spend time regime I am going to order will need also to be attended by ongoing professional assistance so that both these parents can move out of the trenches they have occupied for so long. 

Agreed or Uncontroversial Facts

1. Despite the intensity of their disputation, a not inconsiderable number of matters arising in these proceedings are not controversial. 

2. The father was born on (omitted) 1960 and is a (occupation omitted) by trade.  He lives in his own in his home in (omitted) which from the photographs, appears relatively sparsely furnished but has an apparently reasonably sizeable backyard.  

3. The mother was born on (omitted) 1975 and is a full-time stay-at-home mother living in a rented property also in (omitted) and approximately one mile from where the father resides.

4. The parents underwent a brief relationship in 2008.  It lasted for just a few weeks (father’s version) or about two months (mother’s version).  On any view it was a very brief encounter.  When I suggested during the currency of the hearing that the parties were never really together at all in any meaningful sense, I noted that both parents nodded their heads in agreement.

5. The mother found out she was pregnant after the relationship ended and informed the father.  Following X’s birth as earlier indicated on (omitted) 2008, the parties were not over time able to reach agreement as to how much time the father should spend with X.

6. The mother re-partnered with Mr C in (omitted) 2009, with whom she has been living since then in a de facto relationship.  They have one child together namely, Y, born (omitted) 2011.  The father has an adult child by a previous relationship who does not live with him but with whom he appears to have an unexceptional relationship.

7. The father filed an initiating application seeking time supervised by his adult daughter on 18 September 2009 and the mother’s response filed 13 October 2009, proposed very little time with the father but to be increased to overnight (in accordance with the child’s age).

8. The first affidavit filed by the mother raised issues about the father’s cleanliness when he was spending time with X and also complained of child support issues a dispute which is not yet finally resolved.

9. Ultimately, time was arranged supervised by Ms M whose report filed on affidavit on 13 April 2010, noted a satisfactory development of the relationship between the father and X. She noted that the father’s house was not wholly clean (there was a superabundance of flies, a matter subsequently addressed by the father installing flyscreens) and noted, inter alia, that the mother was always positive about the father’s relationship with the child. The father unsurprisingly perhaps, was not that well attuned to X’s food and drink needs.

10. The 2009 proceeding came to an end when consent orders were made before the court on 23 April 2010.  Both parties were represented at the time.  Inter alia, this provided for gradual increases of time including the commencement of overnight time from Thursday to Friday to commence on 21 April 2011.  Subject to several matters to which I will come shortly, it seems to be common cause that this time progressed generally fairly well until X went to prep at the start of 2014.

11. On 25 February 2012, when X was three years old, the so-called “drill incident” occurred.  The father permitted X to have an electric drill – I presume cordless – in his hand and it went off removing a chunk of X’s hair.  The mother photographed the after-effects of this incident.  Indeed, it is clear that she has been taking photographs of X whenever he suffers injury at the very least since that time.

12. The second incident took place on 11 January 2013 and is referred to as the “hair-pulling incident”.  It should be noted that both of these incidents were the subject of express findings by Judge Baker in her decision given on 28 May 2015 in contravention proceedings between the parties.  For reasons I gave in my preliminary ruling I have adopted those findings as conclusive.

13. Notwithstanding these incidents, X continued to spend time with his father pursuant to the 2010 orders until the start of the 2014 school year.  At that point, the mother ceased the overnight time on Thursdays informing the father that she did not trust him to have the capacity to get X to school on time.

14. The father did not immediately do anything about this development.  He initiated mediation which took place until approximately the middle of the year. The mother’s position is that the end result of the mediation was that the father accepted the new regime she had effectively unilaterally imposed but the institution of the latest tranche of these proceedings shows that that was certainly not the father’s view.

15. In June 2014, the so-called “carpet burn incident” took place.  Although the parties have differing views as to what occurred, there is no dispute that X was pulled while undressed by the father for a distance on the carpet in his lounge and suffered a carpet burn as a result.  The photographs annexed to the mother’s affidavit material do not suggest a particularly severe injury. Indeed, it is hard to see any injury at all in them.  But it is common cause or at least not disputed that the injury formed a scab and as I pointed out during the occurrence of the hearing it must have hurt.

16. On 25 November 2014, the father’s lawyers wrote to the mother demanding an immediate resumption of the previous orders and advising that the father would be attending X’s school each Thursday to collect him and would return him the following morning from 4 December 2014.  On Tuesday, 2 December 2014, the father went to X’s school and introduced himself to the deputy principal.  It is clear that he had had no meaningful involvement with X’s school up until that time.

17. On 4 December 2014, the father went to the school to collect X but the mother had already collected him at 2 pm.  The same thing happened again the week afterwards. 

18. Thereafter, the next relevant development was that on 3 January 2015 the mother alleged that X told her his father had punched him in the stomach five times.  This assertion was also it should be noted the subject of an express finding by Judge Baker which I have adopted.  I accept that the father did not punch X as the mother alleged that he did.

19. Thereafter and throughout 2015, the parties were in and out of court arising from various suspensions of X’s time with his father by the mother.  The court was not however the parties’ only port of call.  X has been taken on a number of occasions to various doctors, hospitals and police stations and has been the subject of a number of Video and Audio Recording of Evidence interviews.  Most particularly these arose out of recitations by X that his father was in the habit of bear-hugging him and causing him pain.  He also sustained a cut and swelling to his lower lip on 2 October 2015 (the falling out of bed incident) and a further incident allegedly reported by X to the mother on 31 October 2015 when X again had a cut inside his mouth on his gum (the dumbbell incident).

20. Additionally, the mother has alleged that the father assaulted X while playing Frisbee with him in 2015.  Further, in November 2015 X allegedly told the mother that his father had assaulted him on a number of occasions, made a threat that he would kill X and the mother and that Ms T (a paternal aunt who was supervising at the time) had also assaulted X.

21. The father has at all times denied actually assaulting X or making any threats against him or the mother.  The father faces criminal charges arising out of the dumbbell incident as I understand it due to be heard later in 2016.

22. As I have indicated, the trial of the proceedings revolved essentially around the two competing versions as to what has actually happened while X has been in his father’s care.  Against the background of vivid disagreement between the two primary players and their supporting witnesses it is appropriate to commence with the reports of Mr V filed with his affidavit on 10 March 2016.

The Reports of Mr V

1. Mr V is, of course, independent of the parties and is a well-known and extremely experienced clinical psychologist with, as his curriculum vitae shows very extensive experience in this field.  His first report dated 20 October 2015 introduces the parties.  I have of course regard to the entirety of the report but I note the following matters as being relevant by way of background.  At paragraph 7, Mr V wrote:

   “…Mr Hawkins denies categorically the allegations of neglect and abuse.  He acknowledges that some of what is reported is accurate in content, but is out of context.  He told me that he felt very guilty about X’s hair having been caught in the cordless drill.  He denied categorically that he physically hits, hurts or punches X, albeit that I was left with the clear impression that from his perspective, he engages in rough and tumble play with X.

2. At paragraph 9, Mr V categorised the case in my view entirely accurately when he said:

   “Mr Hawkins is concerned that Ms Duffy is trying to alienate X;  Ms Duffy believes that X is at risk in the care of his father and that extending the time to include overnights increases the risks exponentially.”

3. At paragraph 14, Mr V observed:

   “The suspicion of Mr Hawkins is that Ms Duffy wants X all to herself.  He explained that from the very outset, she has been reluctant to share her time with X, that she has dictated to him if, and when he could see his son, and that consequently, his time with X has been severely curtailed.”

4. I note that at paragraphs 17 to 18, Mr V recorded a playful and enjoyable interaction between X and his father.

5. At paragraph 30, Mr V reported:

   “What became immediately apparent was that X shares with his mother a very different version of events than that described by Mr Hawkins.  This discrepancy is at the very core of the dispute.  Needless to say, Ms Duffy firmly believes that what X tells her is true...”

6. I further note that at paragraph 32, Mr V said:

   “Now, her level of anxiety has also become high, and after years of having to deal with X’s anxiety and physical presentation, that things have only continued or worsened. Ms Duffy told me that she is now particularly concerned by the unusual nature of the interaction between X and his father at points of transition, that they don’t even look at each other and are awkward in each other’s presence, further fueling her concerns. It seemed very clear that Ms Duffy’s own level of anxiety regarding X has become high, amidst her concerns regarding Mr Hawkins and his behaviour. She showed me a photo of X’s legs that showed blotches, that according to X was a result of his father having made him complete pushups(sic) as punishment for a minor transgression.”

7. I interpolate and repeat what I said about this last assertion during the hearing.  I do not see how doing push-ups would be likely to cause blotches to a child’s legs and it is symptomatic of the mother’s heightened anxiety that she should make this conclusion.

8. At paragraph 33, Mr V said:

   “As was the case with Mr Hawkins, Ms Duffy described a brief but eventful relationship.  In the two months that they dated, she claims that he hit her a couple of times to the arm and the leg, and once physically threatened her.”

1. At paragraph 40 and following, Mr V made observations about X.  X was very aware of the tension between his parents and that they did not like each other (paragraph 40).  X spoke about what he understood to be the battle between his parents and that their conflict was very much about him (paragraph 42).  It is clear from what X has said recorded at paragraph 42, X perceives himself to be involved in a battle which if he loses may mean that he does not see his mother again.

2. At paragraph 44, Mr V noted that the picture presented by X was a confused and conflicted one.  It was very difficult to know whether he really meant what he was saying.

3. At paragraphs 48 to 49, Mr V recorded his interview with Ms R, X’s class teacher.  Mr V noted:

   “She confirmed that previously X was anxious about going to his father to overnight sleeps, referring to his level of anxiety and anticipation of seeing his suitcase, but that he has told her that he no longer felt like this.  The feedback from X to her, is that he is more used to it, that he is more comfortable when things are going well. 

   Ms R also noted that Ms Duffy is very concerned about X, that she shares her concerns in detail with Ms R, that Ms R was aware of the AVO and many of the details of what has occurred;  she also noted that at these times, X tends to be very quiet, but brightens up when on his own.  According to Ms R, X seems happy to go off with his father.  She described Ms Duffy in unequivocally positive terms.”

4. The report goes on to note the understandable difficulty that Mr V had in working out whether what X was saying was correct or not.  I note that at paragraph 54, Mr V stressed the need for the evidence given by the parties to be tested.  I note further that at paragraph 57, Mr V said:

   “Based on the information available, it is difficult to find evidence to support that X has been unequivocally physically maltreated by his father.  X’s reference to his father playing and joking and trying to be fun suggests that X possibly does get hurt in this playful banter.  The carpet burn to his shoulder is significant, and even if it was playful, suggests that it got out of control and caused X harm; a review of Mr Hawkins’ behaviour and a more moderate approach would seem sensible at least.”

5. Mr V went on to recommend time on alternate weekends, a night in the alternate week and a half of the holidays (paragraph 59).

6. Mr V’s follow-up report is dated 14 December 2015, following inter alia assertions that X had been assaulted by the supervising aunt. Mr V noted again that X’s interaction with his father was unremarkable and inconsistent with the fear otherwise asserted.  Mr V concluded on the second last page of his report.

   “The testing of evidence will be of enormous importance in this matter.  My direct observations of X are that he does not appear to interact with his father in a manner that suggests that he is frightened.  Given his account that the supervisor has colluded with the maltreatment and has actually also physically maltreated him, it is significant that my observation of his interaction with Ms T was completely unremarkable.”

7. Mr V continued:

   “From my perspective, the “disclosures” lack consistency, clarity and certainty.  The co-construction of these allegations is one of the possibilities that need to be considered, amongst a shared misbelief with regards to Mr Hawkins’ capacity to do harm to X.”

8. On the last page of his report, Mr V continued:

   “…the other hypothesis is of equal significance, that is, that X is recounting events that did not occur, reporting these to his mother, who acts upon them with vigour, and the more X reports these events, the more they become consolidated as fact, even though they may not have occurred.  The implications for X and his mental health should not be overlooked.

   The longstanding nature of these allegations is serious and the implications for X are substantial.  I also draw attention to the act [sic] that there is little about X’s behaviour that suggests that he is a child who is anxious or traumatised and certainly my observations of him in the company of his family have been unremarkable.”

The Affidavits of the Parties

1. By the time a proceeding has to be housed in a box file, it is immediately apparent that the parties have filed voluminous affidavits, both by themselves and by various family and friends.  I have read the affidavits carefully and have due regard to their contents.  It is not, however, appropriate or necessary to paraphrase them even in outline.  There are, however, a number of matters that should be mentioned.

2. First, it is important to note that the mother did not in the 2009 to 2010 proceedings raise the issues of alleged assault by the father on X at the age of approximately 18 months that she now asserts.

3. Moreover, the mother did not raise in the 2009 to 2010 proceedings any assertions that she had been assaulted by the father during the relationship.  She did not assert this either in her affidavit material or in her interview with Mr U who produced the family report.

4. I have not dealt with Mr U’s report as it has well and truly been overtaken by events but I note that at paragraph 35 Mr U reported:

   “Whilst Mr Hawkins did not articulate it in so many words, he drew attention to Ms Duffy’s social milieu being quite different from his own.  He suggested that their different backgrounds coloured Ms Duffy’s perception of his living conditions.  “Her father was a well known (occupation omitted).  Her parents live in (omitted).  I live in (omitted).  I’m not big on birthdays or Christmas.  She is.  We’re like the characters in The Odd Couple.””

5. It should be noted that it was not until her affidavit filed on 7 May 2015 when the mother asserted that the relationship with the father ended when the father threatened her (paragraph 6).  There was at this time no mention of physical assault.  It was only in her trial affidavit filed 17 February 2016 at paragraph 35 that the mother first mentioned the father slapping X in October 2009 with Ms H (the paternal grandmother) being present.

6. I have concentrated on this aspect of the affidavit evidence because it is of some significance in that given the parties’ positions it is as Mr V asserted, very important that express findings of fact should be made if that is possible.

7. The affidavits of the parties and their supporting witnesses are replete with the accounts of X’s injuries while he is in his father’s care and the father’s denials or qualifications of those matters.  The father is not shy of insulting the mother.  It is conceded that she was a heroin addict at the time of X’s conception but managed to transition to methadone once she knew she was pregnant.  This change is one for which the mother deserves a considerable degree of credit in my view albeit that the father would not appear to endorse it.

8. The father has also taken it upon himself to accuse the mother of being a prostitute, something which she both denies and is significantly (unsurprisingly) affronted by.  He has told his sisters and at least one of his neighbours that the mother is a prostitute and continued with this assertion in the witness box.

9. The mother is likewise in no way shy of criticism of the father.  In addition to the appalling assaults she alleges, she has maintained from time to time that he is incompetent to get X to school, complains of the food he has provided X when he has sent him to school, says he drinks too much and is otherwise generally feckless.

The Evidence Given at Court – The Father

1. In evidence-in-chief, the father dealt with the swimming carnival incident that took place in December 2015.  He said he had observed no marks on X’s arm or neck and had no idea whatever about the injuries to X’s arm.  He said a seatbelt might have given rise to the mark on X’s neck. He said he had been unaware of this incident until the previous Friday.

2. The father was cross-examined over a very extensive period of time.  He denied ever physically disciplining X.  He explained the January 2013 incident (the hair pulling incident.)  He maintained that X had a grin on his face all the way through.  He had pulled X’s hair because X was pulling on his beard (Mr Hawkins has a very luxuriant beard – if X was pulling on it, it might well have hurt Mr Hawkins).

3. The father was cross-examined about Department of Health and Human Services (DHHS) records dated 4 August 2015.  (Extensive DHHS records were tendered and I have had regard to them. I have, however, generally concentrated on the evidence given at Court). He said he had bear-hugged X as a measure of restraint.  He said he had never used excessive force with X but conceded that it was possible that X thought that this might be the case.  He conceded that X might tell his mother the truth as he sees it.  He further conceded that he made a mistake about the drill incident and agreed that the mother would have been concerned about this.  He said he should never have let X touch the drill.

4. The father complained of the mother’s unilateral decision to enter X in the (omitted) School but conceded that they went together for X’s first day at school.  It is fair to say that the father’s evidence did not weaken or change under the extensive cross-examination that took place.

5. I do record that the father has no insight about the mother’s concerns. He said in response to questions from counsel for the mother that he did not need to change. He said he had taken the line of least resistance that was he was conducting himself in the right manner.  He said he did not think he needed a counsellor to be a better father but that the mother needs to improve in how she deals with him.  He said that X was coached to say a lot of things. 

6. The father complained that there was a lot of hostility from the mother towards him and that he walked away most of the time and was never aggressive to her.

7. The father was extensively cross-examined about the degree of financial support he had given to the mother.  He said he would pay bills for X’s school and related matters if he was presented with bills for them and made much of the fact that he had always offered to make such payments.  I would interpolate and say that I found this aspect of his evidence unconvincing.  He has been unwilling to pay because of the ongoing disputation with the mother.

8. The father also gave evidence as to why he thought the mother was working as a prostitute during his relationship with him (something that gave rise at a very late and unfortunate stage to an application for parentage testing which was not fortunately ultimately pursued).  It is sufficient to say that this evidence was extremely flimsy and in my view unbelievable.

9. The father denied the carpet burn incident.  He maintained that the child was dragged six inches or less on the floor and was not injured.  The father confirmed that he has moderated his approach and there are no wrestling games with X anymore.  The father was also cross-examined about the so-called Frisbee incident.  He denied throwing the Frisbee at the child but conceded that he and X had a play wrestle on the grass.  The father did not accept the mother’s version as true.  He accused her of making things up.

10. The father denied all accusations of physical assault upon X.  I note, however, that he did volunteer that he pinches X quite a lot, something it was not necessary for him to have conceded and which does him credit.

11. The father denied drinking to excess, in terms that I find credible.

12. The father’s evidence was at all times tinged with criticism of the mother and it is plain that he sees her in the worst possible light.

13. The father conceded that X is progressing satisfactorily at school.  He also conceded that he should be more proactive in involving himself with paying for X’s school and related matters. 

The Evidence of Ms T

1. Ms T is a sister of the father who has – together with another sister, Ms D and her mother, Ms H – been supervising the father’s time.  She is an (occupation omitted).  Her evidence can be dealt with shortly.  She denied any assault by her on X and also denied that the father had assaulted him.  She gave descriptions of her close supervision of the time she was with the father and X.  It is sufficient to say that she was a quite excellent and extremely fair witness who was unquestionably telling the truth.  She was deeply distressed at the assertion that she might have assaulted X.  Notwithstanding the criticisms made of her by the mother’s material she conceded towards the end of her evidence that the mother had sent her texts when she was not bringing X to spend time with his father.  She said that this was very nice of the mother as it took her an hour to drive to her brother’s home.  This unprompted concession was wholly consistent with the very clear impression I got of her.  She is a thoroughly decent honest person.  I repeat – she was clearly telling the truth.

The Evidence of Ms D

1. Ms D is also a sister of the father’s who works as an (occupation omitted).  She had only supervised on Saturdays.  Once again, her evidence can be dealt with shortly.  Her evidence was entirely consistent with the father’s case.  She had been told that the mother had been a prostitute.  She struck me as being understandably, somewhat partisan but she was careful and direct in her answers. 

The Evidence of Ms H

1. Ms H is the paternal grandmother.  She confirmed in examination-in-chief, the father had not slapped X in 2009.  This was something she would remember.  Under cross-examination, she denied the mother’s version of the event when it was put to her.  Her evidence once again was entirely consistent with the father’s case.  She was a careful witness and once again, clearly a truthful one.

The Evidence of Ms K

1. Ms K was one of a number of neighbours of the father put on affidavit in support of his case.  In the ultimate, only two of these witnesses were called.  The picture painted by the affidavits as a whole suggests that the father is well-regarded in what seems as an attractively closely-knit community which has bohemian overtones.  Ms K indicated under cross-examination that she had been asked to give evidence as a character witness and indeed that was in my view a proper characterisation of her evidence.  She confirmed that X is playful and energetic and a gentle boy and said that she had not seen play-fighting between the father and X, although she had seen them play together.  She had not been told (like Ms H) that the mother had worked as a prostitute.

The Evidence of Mr R

1. Mr R was the other neighbour who was called.  He once again gave evidence that X seems a normal child and is definitely gentle.  He was necessarily like Ms K, somewhat partisan although equally clearly was telling the truth.

The Evidence of the Mother

1. Like the father, the mother was very extensively cross-examined.  The mother gave evidence of the various injuries X had reported to her and it is quite clear that she wholly believes him.  The mother has been in the practice of taking photographs whenever X suffers an injury, not just with his father for a very extensive period of time, at least back to 2013 (the drill incident). 

2. Despite the intensity of cross-examination, it is in my view sufficient to note that the mother’s answers revealed beyond any possible doubt that X does indeed make the disclosures to her that she asserts and that she believes him.  The mother did assert that she saw the father slap X in 2009/2010 but conceded that this was not in her earlier affidavit material. 

3. The mother said that she believed X when he told her things.  She said X was not known to lie.  She was cross-examined about Sexual Offences and Child Abuse Investigation Team (SOCIT) records suggesting that X was being coached and responded that she did not remember those comments at all.  That is an answer I am not able to accept.

4. Put shortly, the mother stuck to her versions of the events. She denied coaching X at all to say anything to anybody.

5. Under cross-examination by counsel for the Independent Children’s Lawyer, the mother repeated that she had seen the father slap X when he was 12 months old in front of the paternal grandmother.  She conceded that it was possible that X exaggerated or makes things up but said it was also possible that the father was lying.  She conceded that the climate between her and the father has changed and agreed that family therapy would be a great idea.  She conceded that no injuries have happened to X this year while he has been in his father’s care.

6. It was noteworthy that towards the end of her cross-examination, the mother complained that she felt as though she was being grilled in cross-examination.  She asked why no one was concerned about the bruises on X and the choke marks upon him.  She suggested that the fact that the question was put to her suggested that she was to blame.  This defensive quality was apparent in the course of her evidence generally.

The Evidence of Mr E

1. Mr E is a Detective Senior Constable in the SOCIT unit at (omitted) Police Station.  He is the informant in the charges being brought against the father and tendered as exhibit ICL3 the brief of evidence. Cross-examination did not in my view produce anything of great significance although I note that Mr E thought a number of the complaints made by the mother were vexatious or the subject of coaching.

The Evidence of Ms R

1. Ms R is X’s teacher at (omitted) School.  Her evidence was cut short by me because it seemed to me so clear.  I put it to all three counsel that the evidence of Ms R was to this effect.  First, Ms R was aware of the mother’s concerns about X and his father.  Second, X knew the purpose of the interviews he was having with Ms R because he volunteered on at least one occasion nothing to report or words to that effect.

2. Third, that X undoubtedly did make complaints of mistreatment by his father to Ms R.  Finally, although initially apprehensive about spending overnight time with his father he had improved over time.  None of the members of counsel to whom I put this paraphrase took any issue with it.

The Evidence of Mr C

1. Mr C is the partner of the mother.  He confirmed that he believes what X says about his father is true and that the mother believes him.  Like the mother, he volunteered that X does not lie.  It is sufficient to say that Mr C struck me as being a fair witness.  His understanding of events is, of course, necessarily very much aligned with his partner’s.

The Evidence of Mr V

1. Mr V confirmed under cross-examination by counsel for the father that supervision would not be necessary if it was found that no assaults had occurred.  He said that the child should spend what he described as normal time (the time indicated in his reports) and that this should occur more quickly rather than slowly.  He opined that it might be appropriate to have someone in substantial attendance at the commencement of the increased time.

2. Mr V did not think that psychological intervention would change what the parties thought. He was in favour of a s.65L order and noted that the work involved is very tricky to do. It should not be reportable treatment. He conceded it might help if someone such as himself explained the court’s ultimate judgment. He said that he would have expected X to be a bully and otherwise misconduct himself if the facts he had asserted were true. He confirmed that X understands he is in a battle, but that he is not reluctant to spend time with his father.

3. Under cross-examination by counsel for the mother, Mr V agreed that the mother’s proposals would be appropriate if the facts she asserted were made out. He confirmed that even if the mother’s concerns were not established there should still be an order for substantial attendance to commence with. He said he had seen the father and X. He said they do not need counselling. They are warm together and have cuddles and snuggle. When asked if there should be an order for sole parental responsibility in favour of the mother, Mr V referred to the poor interpersonal relationship between the parents and their lack of co-parenting in the past. Mr V conceded that there could be non-reportable therapy as well as a s.65L order and that there might be some merit in this being conducted by somebody else.

1. He said that the person who conducted the s.65L procedure should recommend the therapist to do family therapy. In re-examination, Mr V confirmed that Mr L would be appropriate for therapy but somebody else should do the s. 65L counselling. He said he would think as to who should do it.

Findings about the Credit of the Witnesses

1. The father was in the main an excellent witness.  While it is clear that on occasions he has given accounts to various authorities including DHHS that are not consistent with what he says now these do not in my opinion, detract from his overall credibility.  They reflect, I suspect panic responses and/or ill-considered responses at the time.  While there was some aspects of his evidence by which I was not convinced (for example, whether he had makeup time after the mother took X to (omitted) for a holiday), I have to say, that this was a witness of truth.

2. Both parties have plainly been waiting for their day in court avidly.  It is time for somebody to make findings about the matters with which they dispute.  The father was palpably honest in giving his answers.  This does not mean that I necessarily accept everything he said but in respect of the critical central issue, namely whether he wilfully assaults X, it is clear that he is truthful.

3. The mother was not as good a witness as the father.  She prevaricated answered questions with questions of her own and a number of her answers were non-responsive to questions put.  Nonetheless, it is absolutely clear once again that she is telling the truth when she says that X has made the various disclosures to her that she has asserted and it is quite clear that she believes them.  Contrary to the father’s suspicions she is not making any of it up.

4. I have already dealt with the evidence of the father’s family and I repeat that it is quite clear that Ms T, Ms D and Ms H were truthful witnesses.  Although little turns upon their evidence so was Ms K and Mr R.

5. Mr C was clearly a truthful witness albeit necessarily wholly aligned with his partner’s case.  Mr E’s evidence was likewise clearly given honestly but nothing turns on it in my opinion.

Findings about the Facts

1. These parties had a brief relationship of somewhere between 20 days and two months.  The mother was obviously troubled at the time being addicted to heroin but greatly to her credit, she managed to wean herself off it promptly once she realised she was pregnant.  The mother has from time to time asserted that the relationship ended because of assaults or threats by the father.  The assaults and threats asserted never rose as high in the earlier material as the alleged assault of X that the mother asserted in court.  It is simply not possible to arrive at conclusive findings as to whether the father assaulted the mother in 2008 or 2009.  I would have expected such assaults to have been in her affidavit material but what is very noteworthy is the absence of any account of the father slapping X in 2009, or when he was 12 months old or 18 months old.

2. I am completely satisfied that the father did not assault X when he was a very young child in his mother’s presence.  Ms H, who is in her 80s, nonetheless struck me as being in complete command of her faculties.  She was an intelligent, thoughtful and considered witness.  I agree that if she had seen her son hit X, she would have remembered it.  I do not accept for an instant that she would have permitted her son to hit X without reproach.  She is simply not that sort of person.  The alleged assault in 2009 simply did not occur.

3. What did occur was the drill incident in January 2013.  The father, in his evidence, tended to downplay this issue albeit that he acknowledged that it should never have happened.  It is extremely concerning that he should have been so feckless as to allow a child so young in age unrestricted access to something as dangerous as a cordless drill.

4. The next significant incident in time is the alleged punches to the stomach in January 2014.  I have already indicated that I accept Judge Baker’s finding in this regard.  I should, however, make it clear that while Judge Baker’s view of the events is essentially consistent with that at which I have arrived I have formed my conclusions on the evidence that I heard and saw. 

5. The next incident after this was the June 2014 carpet burning incident.  The father’s account of this is entirely believable (albeit that there seems to have been a different account given to Mr V at some point).  It does not in my view matter whether the journey across the carpet was a matter of an inch or two, or something substantially greater.  The reality is that X was injured and the mother’s concerns are understandable.

6. The reality is that the father is a strong man who works with his hands.  There is no doubt that he has had an affectionate relationship with X, which has included a certain amount of rough and tumble play.  As I find this has on occasion been rougher than a small child like X really likes.  I agree with Mr V’s conclusion that the father would do well to moderate his behaviour as I believe he has.  X has clearly been hugged more tightly than he wishes and has complained of this to his mother and once again the mother’s concerns are understandable albeit that there was clearly nothing whatever malicious in anything the father did.  He may not fully know his own strength.

7. This brings us to the very significant matters asserted to have occurred in October 2015.  I will pass lightly over the so-called Frisbee incident. It is quite plain that nothing untoward occurred on that occasion.

8. While X undoubtedly told his mother the version of events for which he contends which in each instance would involve an unprovoked assault by the father upon him, I have no doubt whatever that events transpired as the father said.  The falling out of bed incident was found by the investigating medical authority to be more probably the result of the child falling than of being struck.  I agree.

9. Likewise, although the father leaving a dumbbell around the house is consistent with a certain lack of care and attention, exemplified by the drill incident, I have no doubt that the event transpired as the father said.  His demonstration of how the dumbbell came up and hit X on the lip was not only credible in itself but given in a manner in which the witness was clearly telling the truth.

10. It needs to be borne in mind that in considering these critical incidents, one has to look at the evidence as whole and in a rational manner.  The mother’s belief is that the father brutally assaults X with the connivance, on at least one occasion of his own mother and the active participation of Ms T.  One has to wonder, bearing in mind s.140 of the Evidence Act, whether such allegations are really likely to be true.  They are not.  Ms T has never assaulted X and would never dream of doing so or of permitting the father to do so as X has recounted to his mother.

11. It does, however, need to be borne in mind that X has undoubtedly made the disclosures to his mother that his mother asserts.  These must be terribly concerning to her.  As I find and as Mr V inferred, this is a process of co-construction between X and his mother.

12. X has come to realise that he is the subject of a battle between his parents.  As he indicated to Mr V, he is concerned that if he loses the battle, he may not see his mother.  This is a terribly sad and unfortunate situation for him.  His mother’s anxieties are clearly known to X and in the ultimate, he has been telling her what he thinks she wants to hear.  As I indicated during the currency of the hearing, things have gone terribly and very sadly wrong.

13. I think that in dealing with the litany of various incidents, the final one I should just briefly deal with is the swimming pool incident.  The photographs tendered do not show any injury of any moment.  It is a measure of the mother’s hyper-vigilance that she should have immediately drawn a negative conclusion and gestured to Ms R in such a fashion as to draw her attention to the matter.  The marks had dissipated within a short period of time and given that X had not been with his father for some hours by the time the injuries were observed, the proposition that the father was the cause of them in any event is plainly unbelievable.

The Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (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 and 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.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.

Sole Parental Responsibility

1. The mother seeks sole parental responsibility.  This is put on two bases.  First, she points to the history of assaults by X as rebutting the statutory presumption. Second, she points to the very poor interpersonal communications between the parties.  Counsel for the Independent Children’s Lawyer submitted that there should be an order for shared parental responsibility.  It was agreed in 2010 and decisions had in effect been made without significant acrimony such as the choice of the child’s school.

2. Counsel submitted that if sole parental responsibility was given to the mother, it would be likely to be used against the father.

3. Naturally, counsel for the father adopted the same position.

4. Counsel for the mother pointed to the injuries sustained by X on any view of the matter and pointed also to the father’s lack of involvement with X’s school.  He has not yet been to a teacher parent meeting, and has made no contributions to school fees.

5. This matter can, like a number of issues in this case, be dealt with shortly.  The findings I have made conclusively refute the mother’s assertion that the presumption as to equal shared parental responsibility should not be applied because of family violence.  The parties, as the mother herself conceded in evidence, need to change the climate in which they operate.  I accept the submissions of the Independent Children’s Lawyer that this is a case in which shared parental responsibility should be ordered and agree with the risks counsel identified in the event that it is not.

Equal Time/Substantial and Significant Time

1. While the court is required to consider equal time, no one has suggested it and it is clear that in the circumstances of the amount of time that X has spent with his father and the difficulties with communication between his parents that equal time is utterly inappropriate.

2. The question then becomes whether X should move to what Mr V described as normal time, and how long this should take.  The father’s proposal is to move to time each alternate weekend and time in the off week with school holiday time effectively immediately.  The mother’s position would be far more attenuated with supervision until X turns eight later this year and no overnight time until he is 10.

3. In considering the different proposals, it is appropriate to examine X’s best interests by reference to the terms of s.60CC of the Family Law Act 1975 (‘the Act’).

Section 60CC(2) – The primary considerations

1. All parties agree that it is appropriate for X to have a meaningful relationship with each of his parents. They also agree that it is necessary to protect him from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is not necessary to repeat yet again that I have conclusively found that the father has not assaulted X or exposed him to family violence even within the extended definition of that term in s.4A of the Act.

The Additional Considerations – Section 60CC(3)(a)

1. X has, of course, told his mother that he is terrified of spending time with his father and has acted in her presence and that of Mr C consistently with such an assertion.  However, as X’s teacher Ms R points out it is apparent that when overnight time was recommenced, effectively at the start of 2016, X was initially hesitant and concerned but he now goes voluntarily.  Given that X’s disclosures have not (in the material sense with which we are concerned) been truthful, it is not possible to give weight to these assertions.  This is all the more the case when I note Mr V’s observation of X with his father as wholly unremarkable.

Section 60CC(3)(b)

1. X has a warm and very well established relationship with his mother, who has always been his primary carer.  She adores him.  It also appears that he has good relationships with Mr C and his half-sibling, Y (subject to normal sibling conflict) and although the evidence did not touch on the matter in any detail, I would infer he has a satisfactory relationship with the mother’s extended family.

2. Contrary to what X has told his mother and others over time, X has a well-established and very affectionate relationship with his father, the members of his extended family and indeed with other neighbours of the father’s, all of whom speak well both of him and of the relationship.

Section 60CC(3)(c)

1. This is a more difficult matter.  Both parents are very critical of each other.  The mother has right from the start of X’s life professed a desire to foment a relationship between X and his father.  Indeed, the father gives her no credit as I think he ought to, for the fact that the mother told the father of his conception when she did not need to and arranged for him to start spending time with him right from the beginning.  This time went generally well through to 2014.

2. Nonetheless, the mother as she said in her evidence is between a rock and a hard place.  As I find it she knows that the court is likely to seek to enforce a relationship between X and the father and is prepared in the ultimate very properly to comply with court orders.  Deep down, however, the mother thinks that the father is an ogre who assaults X and this self-evidently leads her not to desire the relationship to continue.  She says she just wants the child to be safe and that is a very understandable and proper concern.  The pity of it is that the matters that lead her to this exaggerated concern are not well-founded as I find it in fact. 

3. The view of the father about the mother’s relationship with the child is also tinged by his dislike of her.  He sees this in part as a struggle for X’s time and indeed it is clear to me that that is what both parties are about.  They fight tenaciously for every inch of the terrain.  Nonetheless, the father concedes that the mother is a good mother and this at least is to his credit. 

Section 60CC(3)(ca)

1. The mother has always been the child’s primary carer and even the father concedes that she has been a good mother. She has maintained X with the assistance of Mr C since the relationship with him commenced, and it can be shortly stated that she has unquestionably fulfilled in an entirely appropriate way her responsibilities to maintain the child. The father’s position is less satisfactory. As I find as a result of his dissatisfaction with the amount of time he was obtaining with X (which he perceived was wilful exclusion) and possibly for other reasons he has simply not properly addressed his obligations to maintain X. Although he made much of his offers to pay school fees and so on if asked the truth is he has been extremely tardy in doing anything practical to assist the mother in terms of financial assistance. The sooner he raises his game the better. He should be volunteering not waiting for requests.

Section 60CC(3)(d)

1. The mother’s case, of course, is that any extensive absence from her on X’s part will be deeply distressing to him.  This springs, of course, from her understanding of the facts in the past.  X will be eight this year and the evidence so far as it goes suggests that he has adapted well to the resumption of overnight time although perhaps initially apprehensive.  It is not, of course, entirely possible to foreshadow exactly how X would respond to increased time but I note the recommendation of Mr V that normal time be established if the allegations of violence are not made out. 

2. There is nothing to suggest that X will be seriously adversely affected by not being in the company of Mr C or Y.  The person who will be very concerned, however, is his mother. 

1. It is quite clear that the outcome of these findings I have made in this case will be deeply distressing to the mother.  Any consequential change in the amount of time X spends with his father will, of course, cause her considerable anxiety.  This is not a matter to be set at nought which is what I took the submissions of counsel for the father’s position to be.  It is a practical reality that needs to be borne well in mind in X’s best interests.

Section 60CC(3)(e)

1. There is no practical difficulty or expense involved with X spending more time with his father.  The parents live only about a mile apart.  There is nothing to suggest that the father cannot properly look after X despite the mother’s historical concerns about food, hygiene and the like.  The father’s lifestyle is something of a counter-cultural one but I suspect that Mr U was right when he recorded the differing social backgrounds of the parties and the extent to which this gives rise to different perceptions of what is normal behaviour.

Subsection 60CC(3)(f)

1. Although, of course, X’s parents have very differing views about the father’s capacity to care for him, they agree that the mother is an excellent carer.  The father has perhaps been over boisterous with X in the past and needs to bear this in mind.  Subject to that minor qualification, however, there is nothing to suggest that the father is incapable in any way of providing for X’s day-to-day needs including his emotional and intellectual ones.

Section 60CC(3)(g)

1. I have already, to an extent, touched upon this matter in commenting upon the apparently rather different social economic backgrounds of the parties.  As I have indicated, the father’s lifestyle appears to have about it something of what one might describe a counter-cultural flavour.  This is not in my view in any sense a matter for criticism.  The father is substantially older than the mother and leads a different sort of life.  Nonetheless, there is nothing to suggest that either of these parents are anything other than perfectly decent citizens and loving parents.  X’s personality is gentle and perhaps at times slightly shy.  As already indicated more than once the father needs to pay greater attention to this aspect of his personality.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. The mother has, of course, at all times been a totally committed and entirely appropriate parent.  The father’s behaviour has as he himself conceded been somewhat lacking in some respects.  He may well have taken the path of least resistance but the net effect of that is that he has not been involved as a parent with the school.  He has not contributed to X’s school uniforms and the like.  Nonetheless, the answers he gave to the effect that he will be attending far more closely to these matters in the future are answers that I accept.

2. It needs to be borne in mind that whatever his failings (the drill incident and the carpet burn incidents spring to mind) he loves X and has fought long and hard through the court system to try and spend time with him.  He is clearly a committed parent.

Section 60CC(3)(j)

1. The allegations of family violence have been at the forefront of this case.  I believe I have determined them all.  I repeat that having seen the parties give their evidence I have no doubt whatever about my findings which I hope I am making with sufficiently vigorous emphasis.  While I am not able to say whether the father was violent to the mother in 2008, I have no doubt that there has been no family violence in the terms described by the mother inflicted upon X by his father.  Still less so by Ms T.

Section 60CC(3)(k)

1. There have, indeed, been various Intervention Orders and the father still faces criminal proceedings arising out of the October 2015 incident.  Nonetheless, these matters, while I am aware of them do not qualify the very clear factual findings I am making.

Section 60CC(3)(l)

1. It is plainly entirely desirable that orders be made to limit further litigation.  This child has been the subject of too much litigation and is all too aware of it, at least in broad terms.

Section 60CC(3)(m)

1. I repeat that I am well aware that the findings I make will be very difficult for the mother to accept. They may well be very difficult for the father also but since he is the one who is exculpated, I suspect he will be more likely to accommodate the rejection of his views. The question that arises is the time regime which should be imposed. In my opinion, Mr V’s recommendations of Friday to Monday one week and a night in the other week and half school holidays make eminent sense. They are substantial and significant time within the meaning of the Act and a regime which X, who is coming rapidly up towards eight years of age, should well be able to sustain. They are supported by the Independent Children’s Lawyer. The question, however, is how this is to be achieved.

2. In my opinion, given that both parties have expressly accepted the proposition that family therapy would be of assistance this should occur. I note Mr V’s suggestion that family therapy should be conducted by Mr L with s.65L assistance to help the parties comply with the orders to be made. I will order that the family therapist be nominated by the Independent Children’s Lawyer following consultation with Mr V.

3. I note that the mother is opposed to Mr V’s continuing involvement. This doubtless arises from her perception that Mr V’s reports were unfavourable to her case. I note that Mr V conceded that it might be better if somebody else could do it but I note that he said there are few people who can. If the s.65L has to be conducted by Mr V then it should be. Once again, the formal order will be for the Independent Children’s Lawyer to choose after consultation with Mr V.

4. The question then becomes whether there should be any form of supervision or substantial attendance by a third party when time commences.  In this regard, I note that Mr V was certainly not opposed to it.  X is used to having his aunts and or grandmother present when he spends overnight time.  He was initially discomforted by this but has got used to it.  To continue it will therefore not be to change things in X’s life.

5. As I have already indicated, it is enormously important to assist the mother through a change of regime which will be very difficult for her.  In my opinion, it would be helpful to everybody and ultimately therefore helpful particularly to X, if there was to be a continuation of third party presence at least for the first two months of the extended regime.  Both the paternal aunts and grandmother were clearly prepared to continue to do whatever was necessary to improve X’s relationship with his father.  I will direct that one or other of the three of them, at least, be in substantial attendance during the time X spends with his father, for the first two months.

Conclusion

1. This has been a terribly sad case in which, as I have already indicated, everything has just gone terribly wrong.  The initial relationship between the parents was brief and must have ended in acrimony, given its brevity.  The mother has always been concerned about aspects of the father’s lifestyle and attendant possible risks for X.  She has clearly been hyper-vigilant.  Contrary to her supposition, the court takes the issues of X’s injuries very seriously.  Unfortunately for her, however, I have come to a very clear view that she is substantially wrong although things have happened which would very naturally be of concern to her. 

2. The regime I have set in place does the best I am able to apply the statutory pathway bearing conscientiously in mind that it is X’s best interests with which we are ultimately concerned.

3. Nonetheless, I think it is important that the parties be reminded at the conclusion of this relatively lengthy judgment that I have found both parents to be wrong in their essential demonisation of the other. The father is not an ogre who beats X up. He loves him. The mother is not an evil person seeking to exclude the father from time with X for selfish reasons. She has at all times genuinely believed what X says to her even though what X says to her has not always been truthful. These two persons both struck me as being essentially thoroughly decent and loving parents. It is to be hoped that with the assistance of s.65L counselling together with family therapy, that they can start to address the assuaging of the bitterness that has so consumed them for so long. That is the path to the future and the one that will give X the chance to enjoy the rest of his childhood, being loved by two parents both of whom are devoted to him.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  1 June 2016