HIBBERD & BANNER

[2014] FamCA 320

FAMILY COURT OF AUSTRALIA

HIBBERD & BANNER [2014] FamCA 320

FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – allegations of alienation, family violence, and sexual abuse – child has a meaningful relationship with both parents – mother concedes risk of sexual abuse by the father is not unacceptably high – no unacceptable risk of harm posed to the child by either parent or their new partners – where the mother is the child’s primary attachment figure and has always been the primary carer – child to live with the mother and spend time with the father – child’s time with the father does not require supervision

FAMILY LAW – CHILDREN – Parental responsibility – presumption of equal shared parental responsibility does not apply – father found to have committed family violence in the past – continuing high conflict between the parties – mother to have sole parental responsibility

FAMILY LAW – PRACTICE AND PROCEDURE – Admissibility of second Family Report – admissible, but limited probative value

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 78
Evidence Act 1995 (NSW) s 135
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 62G, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65LA
Family Law Rules

Browne v Dunn (1893) 6 R 67
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services (2011) 243 CLR 361
M v M (1988) 166 CLR 69 at 75-77
Marriage of L & T (1999) 25 Fam LR 590
MRR v GR (2010) 240 CLR 461
Slater & Light (2011) 45 Fam LR 41
Tryon v Clutterbuck (2011) 44 Fam LR 361
U v U (2002) 211 CLR 238

APPLICANT: Mr A Hibberd

RESPONDENT: Ms Banner

INDEPENDENT CHILDREN’S LAWYER: Craney Family Solicitors

FILE NUMBER: NCC 1466 of 2012

DATE DELIVERED: 19 May 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 28, 29, 30 April, 1 & 2 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr W Tregilgas

SOLICITOR FOR THE APPLICANT: Hills Solicitors

COUNSEL FOR THE RESPONDENT: Mr M Bateman

SOLICITOR FOR THE RESPONDENT: Hunter Family Law Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr B Kelly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Craney Family Solicitors

Orders

1. All former orders relating to the child G, born … 2010 (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Each party shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

   (a)Until the child commences school:

   (i)During school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each school term;

   (ii)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and

   (iii)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

   (b)       After the child commences school:

   (i)During school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if a long weekend), commencing on the first Friday of each school term;

   (ii)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and

   (iii)During the Summer school holidays, for the first half of such holidays in the years when the holidays commence in an even numbered year, and for the second half of such holidays in the years when the holidays commence in an odd numbered year.

5. For the purposes of implementation of Order 4 hereof, the school holidays are deemed to commence at 9.00 am on the first day following the last day of school term, the holidays are deemed to end at 5.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid-point is 1.00 pm on the day halfway between those first and last days.

6. Orders 4 hereof is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and

   (b)Between 5.00 pm Saturday and 9.00 am Monday on each Mother’s Day and Father’s Day weekends, during which periods the child shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend.

7. For the purposes of implementing Orders 4 and 6 hereof, the parties shall respectively ensure the child’s:

   (a)Collection from school, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (b)Return to school, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)Collection from and return to the McDonalds Restaurant at Town I, NSW.

8. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

   (a)The father, each Wednesday at 6.00 pm when the child is living with the mother, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother and the mother shall ensure that the child is able to receive the father’s calls on that number at that time;

   (b)The mother, each Wednesday at 6.00 pm when the child is spending time with the father, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father and the father shall ensure that the child is able to receive the mother’s calls on that number at that time; and

   (c)The parent with whom the child is not then staying, on the child’s birthday at 6.00 pm, and for that purpose the parent with whom the child is are not staying shall telephone the child on the telephone number provided by the other parent for that purpose and the parent with whom the child is staying shall ensure that the child is are able to receive the other parent’s calls on that number at that time.

9. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

10. Each party is restrained from permitting the child to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.

11. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

12. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.

13. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

14. Leave is granted to the parties to furnish a sealed copy of these orders to the principal of any pre-school or school attended by the child.

15. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

16. In the event of any party notifying either the police or a prescribed child welfare authority that the child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously or as soon as possible thereafter provide to the person to whom the notification is made a sealed copy of these orders and the reasons published for such orders.

17. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

18. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

19. Costs are reserved for 28 days.

20. Any and all outstanding applications for interim orders are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1466 of 2012

Mr A Hibberd

Applicant

And

Ms Banner

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting arrangements for a four year old child.

2. The applicant father and respondent mother each wanted the child to live with them and they each wanted sole parental responsibility for her.

3. Both parties also wanted to restrict the child’s relationship with the other to occasional supervised visits, either temporarily or permanently.

4. The mother’s motive for proposing such an outcome was to protect the child from any physical or psychological harm she may experience from her exposure or subjection to sexual abuse or family violence committed by the father.

5. Conversely, the father’s motive was to ensure the child can enjoy and derive benefit from her relationship with him, because whilst ever she lives with the mother he believes that will not be possible.

History

1. The parties commenced their relationship in 2007 and finally separated in October 2010.

2. Their only child was born in May 2010 and is now four years of age.

3. The child, who was only five months of age at the time of the parties’ final separation, remained living with the mother.

4. There was considerable disharmony between the parties about the child’s relationship with the father following separation. It is common ground the mother refused to allow the child to spend any time with the father for several months. She alleged it was to protect the child, but the father alleged there was no reasonable basis for the mother’s truculence.[1]

   [1] First Family Report, paras 4, 36

5. From early 2011 the mother began allowing the child to spend short amounts of time with the father each week, but there was an inconsistency in their evidence about whether the child’s visits with the father were supervised.[2] Evidence given by the mother in cross-examination, some of which related to the contents of prior affidavits filed by her, inexorably meant the child was in the father’s unsupervised care on at least some occasions.

   [2] Father’s affidavit, paras 7-11; Mother’s first affidavit, paras 128-130

6. By July 2011, any concord that had developed between the parties dissolved. Save for only a few occasions, the mother refused to allow the child to spend any time with the father for about six months.[3]

   [3] Father’s affidavit, paras 12-28; Mother’s first affidavit, paras 131-147

7. In December 2011 the parties mediated an arrangement under which the child would spend supervised time with the father on two occasions each week at a contact centre for several months, after which time the requirement for supervision would be conditionally abandoned.[4]

   [4] Father’s affidavit, paras 27-29, 33-34, 36; Mother’s first affidavit, para 155

8. That arrangement was implemented for only a short period. Within a couple of months the mother again refused to allow the child to spend even supervised time with the father.[5] Dissatisfied with that predicament, the father commenced these proceedings in June 2012.

   [5] Father’s affidavit, paras 35-40; Mother’s first affidavit, paras 156-160

9. The first set of interim orders was made by the Court on 31 July 2012, with the consent of the parties. The orders provided for the child to live with the mother and to spend supervised time with the father each week at a contact centre. The Court expressly noted the proceedings would be adjourned for several months, at which time the orders regulating the child’s interaction with the father would be given further consideration.

10. Notwithstanding the limitations imposed by those orders, the mother allowed the child to begin spending unsupervised overnight time with the father in November 2012,[6] which presaged fresh orders a month later.

    [6] First Family Report, para 5

11. The second set of interim orders was made by the Court on 7 December 2012, again with the parties’ consent. The former orders were discharged and fresh orders were made for the child to live with the mother and to spend unsupervised time with the father every weekend. Those interim orders were implemented by the parties unremarkably until April 2013.[7]

    [7] Father’s affidavit, para 51; Mother’s first affidavit, para 161

12. The mother alleged that on 22 April 2013 the child made statements to her which led her to believe the father had sexually abused the child. The mother thereafter refused to allow the child to spend time with the father in accordance with the existing orders.[8] The mother said in cross-examination that her solicitor offered the father the opportunity to spend supervised time with the child, but the father did not respond.

    [8] Father’s affidavit, paras 53-54

13. Having regard to the nature of the fresh allegations, the proceedings were transferred by the Federal Circuit Court to this Court and the proceedings were classified into the Court’s Magellan protocol.

14. A third set of interim orders was made between the parties on 11 July 2013, again with their consent. The orders provided for the child to spend supervised time with the father for several hours each week, with the supervision provided by either the paternal grandmother or another named adult. Those orders were apparently only intended to prevail until the parties’ outstanding interim applications could be heard and determined.

15. A fourth set of interim orders was made on 23 August 2013 following a contested hearing. The orders provided for the child to live with the mother and to spend unsupervised time with the father each alternate weekend and for several hours on an intervening afternoon.

16. Those orders broke down almost immediately in early September 2013, when the mother alleged the child made further statements to her implicating the father in her sexual abuse. The mother then ceased compliance with the orders.

17. The mother’s report of the matter to police resulted in the issue of a provisional apprehended violence order by police against the father on 5 September 2013, which was later converted to an interim apprehended violence order by the NSW Local Court. It is common ground the order made by the NSW Local Court in the apprehended violence proceedings suspended operation of the interim parenting orders made by this Court on 23 August 2013.[9]

    [9] Father’s affidavit, paras 60-67

18. The parties both then filed fresh interim applications to review the interim parenting orders made on 23 August 2013 in light of those subsequent developments. Their applications were heard and determined on 13 December 2013, when a fifth set of interim orders was made. Relevantly, those orders continued the operation of the orders formerly made in August 2013, but imposed supervision upon the child’s visits with the father, with such supervision to be provided by either the father’s wife or one of the paternal grandparents. The orders expressly provided that they prevailed over any inconsistent apprehended violence order of the NSW Local Court.[10]

    [10] Order 6 and Notations A-B made on 13 December 2013

19. Since then, the aggregated orders of August and December 2013 have been implemented successfully, despite the mother’s apparent misgivings.[11]

    [11] Father’s affidavit, para 83; Mother’s first affidavit, paras 234-253; Mother’s second aff

Proposal of father

1. The father adhered to the orders he proposed in his Amended Application filed on 17 January 2014. He proposed that the child live with him and that he have sole parental responsibility for her. He also proposed the child indefinitely spend only supervised time with the mother for two hours each fortnight.

Proposal of mother

1. The mother abandoned the orders she proposed in her Amended Response filed on 3 February 2014. Instead, she proposed the orders set out in the minute of orders she tendered during final submissions.[12]

   [12] Exhibit M6

2. The mother proposed that the child live with her and that she have sole parental responsibility for her.

3. Her proposal for the child’s future interaction with the father was intricate.  For the next two years she proposed that the child spend only supervised time with the father for two hours each fortnight. Thereafter, subject to the father’s successful completion of counselling in respect of his propensity to commit family violence, she proposed the child spend unsupervised time with the father on a more orthodox basis of alternate weekends, parts of school holidays, and on other special occasions.[13]

   [13] Exhibit M6, Orders 4-5

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer orally outlined the orders he proposed during final submissions.

2. His proposal was for the child to live with the mother and for the mother to have sole parental responsibility for her. He proposed that the child spend unsupervised time with the father on alternate weekends, for half of school holidays, and on other special occasions.

The evidence

1. The father relied upon:

   (a)His affidavit filed on 21 March 2014;

   (b)The affidavit of his wife (“Ms B Hibberd”) filed on 21 March 2014;

   (c)The affidavit of the paternal grandmother filed on 21 March 2014; and

   (d)The affidavit of the paternal grandfather filed on 21 March 2014.

2. The mother relied upon:

   (a)Her two affidavits filed on 24 March 2014 and 23 April 2014; and

   (b)The affidavit of her husband (“Mr F”) filed on 9 April 2014.

3. Objections were made by the father to parts of the affidavits relied upon by the mother. Some objections were sustained; some on the basis of irrelevance and others for infractions of the Evidence Act 1995 (Cth), the provisions of which applied to the evidence relating to the father’s alleged sexual assault of the child pursuant to an earlier procedural order.[14]

   [14] Order 10 made on 13 December 2013

4. The Independent Children’s Lawyer relied upon the affidavit of a paediatrician, Dr T, filed on 21 November 2013, pertaining to her physical examinations of the child. The Independent Children’s Lawyer did not obtain and file any update affidavit by the paediatrician, as procedural orders permitted.[15]

   [15] Order 14 made on 13 December 2013

5. The parties and Independent Children’s Lawyer also relied upon:

   (a)The Magellan Report, dated 8 August 2013, furnished to the Court by the Department of Family and Community Services (“the Department”);

   (b)The Family Report dated 8 April 2013 (“the first Family Report”); and

   (c)The Family Report dated 27 September 2013 (“the second Family Report”).

6. The father’s objection to the admissibility of the second Family Report, pursuant to both s 62G(8) of the Family Law Act (“the Act”) and s 135 of the Evidence Act, was rejected, though for reasons articulated during that argument the second Family Report had limited utility despite its admissibility. The admissibility of, and the weight attributable to, Family Reports are quite different issues (see Tryon v Clutterbuck (2011) 44 Fam LR 361 at 373).

1. The Family Reports were prepared by two different Family Consultants. That is because the first Family Consultant was unavailable to assist when the second Family Report was ordered.[16] The second Family Report was ordered because, after release of the first Family Report, the mother made allegations that the father sexually abused the child and such allegations substantially altered the complexion of the proceedings. Before then, consensual interim parenting orders had been made for the child to spend regular unsupervised time with the father, but thereafter the mother’s attitude about interaction between the child and father markedly changed and she demanded that the child be at least supervised when with the father.

   [16] Notation B made on 23 August 2013

2. Unfortunately, the procurement of the second Family Report was rendered pointless because the second Family Consultant decided not to broach the issue of sexual abuse at all. She did not interview the child and she did not conduct any observations of the child in the company of the father.[17] The decision not to interview the child was motivated by the belief that the criminal investigation against the father was still pending. The decision not to observe the child in the company of the father was motivated by the existence and terms of the interim apprehended violence order in favour of the child against the father, made in September 2013 following the mother’s report of the father’s alleged sexual abuse of the child.  

   [17] Second Family Report, paras 18, 57, 106

3. The second Family Consultant, in reliance upon the mother’s insistence that the father was to be imminently prosecuted for the substantiated sexual abuse of the child,[18] made no recommendations other than that the Court should await the outcome of the father’s prosecution and then obtain update information from a variety of sources, including a psychiatric report on the father.[19] The second Family Consultant’s reliance upon the untested information provided by the mother colours the second Family Report. In fact, the mother was wrong. Over a year has now passed and the father has still not been charged with any offence. It is now highly improbable he ever will be charged. The prospect of his prosecution on the child sexual abuse allegations rapidly diminishes with the passage of time.

   [18] Second Family Report, paras 41, 52

   [19] Second Family Report, paras 107, 114-116

4. In summary then, the second Family Report offered nothing over and above the first Family Report. It amounted to little more than a synopsis of the parties’ grievances, the past evidence filed by the parties, and the contents of a selection of documents produced on subpoena, followed by a conclusion that the father treated the mother violently. Self-evidently, that is a question of fact for the Court to determine. The Family Consultant also hypothesised about the father having an undiagnosed psychiatric disorder, notwithstanding her concession of an absence of qualification or experience to proffer such a diagnosis.[20] At the mutual request of the parties and the Independent Children’s Lawyer, the matter proceeded to final hearing on the available evidence, regardless of the second Family Consultant’s recommendations to the contrary.

   [20] Second Family Report, paras 20, 112, 114, 116

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Act, wherein the meaning of a “parenting order” is defined (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child – primary considerations

Section 60CC(2)(a)

1. It was common ground the child enjoys a meaningful relationship with the mother. The mother is the child’s primary attachment figure and has been her primary carer since birth.[21]

   [21] First Family Report, para 65; Second Family Report, para 59

2. Despite the mother adducing evidence apparently designed to prove the child is resistant to spending time with the father,[22] it was not contended by her that the child does not enjoy a meaningful relationship with the father. Aside from her asserted concerns about the risks of harm to the child, the mother deposed to the importance of the child’s relationship with the father.[23] In fact, there was plenty of unchallenged evidence to prove the child does have an important, significant and valuable relationship with the father.[24]

   [22] Mother’s first affidavit, para 225, 241, 244, 250, 251; Mother’s second affidavit, paras 2, 3

   [23] Mother’s first affidavit, para 139

   [24] First Family Report, para 64; Second Family Report, paras 25, 64, 73, 83

3. It follows that, subject to findings pursuant to the evidence which is relevant under the rubric of s 60CC(2)(b) of the Act, orders must be made that enable the child to continue to derive benefit from the important filial relationships she enjoys with both parties.

Section 60CC(2)(b)

1. The nature of the risks of harm to which the child was allegedly exposed in the parties’ respective households was a moving feast in this litigation.

2. Ultimately, the mother alleged only that the child was at unacceptable risk of harm through her exposure to family violence committed by the father. She eventually abandoned her contention that the child was at unacceptable risk of harm through her subjection to sexual abuse by the father, though she maintained that a risk of that sort still did exist. Her final position was inconsistent with the manner in which her case was prepared and presented, because during the proceedings she filed two Notices of Child Abuse in April and September 2013, both of which pertained to the risk of the child’s sexual abuse and neither of which alleged the occurrence or risk of family violence.

3. Conversely, the father alleged the child was at some risk of psychological harm through exposure to family violence committed upon the mother by Mr F. He also contended the child was at risk of harm through her subjection to sexual abuse by Mr F. The father did not file a Notice of Child Abuse in respect of either of those risks.

4. As has been pointed out by the Full Court, if evidence of abuse or family violence is adduced at trial the Court is obliged to deal with it, irrespective of the parties’ failure to file any Notice in accordance with the Act and Family Law Rules. Conversely, if such a Notice is filed without a proper evidentiary foundation of either abuse or family violence, the Court is not bound to find the existence of abuse or family violence simply because the Notice was filed. Any Notice simply serves to notify the existence of an issue. The Court must always critically assess the evidence placed before it in determining the issue (see Slater & Light (2011) 45 Fam LR 41 at 47-48).

Alleged sexual abuse of child

1. Despite the manner in which the mother conducted these proceedings up to and during the final hearing, she eventually importantly conceded:

   (a)The available evidence did not prove on the balance of probabilities that the child had been sexually abused – by the father or anyone else; and

   (b)The father did not pose an unacceptable risk of sexual abuse to the child.

2. Her ultimate position on the issue was that the child’s sexual abuse by the father was “possible” and he therefore presented some level of risk to the child, albeit that the risk was not unacceptably high.

3. The father’s vacillation on the issue was just as bemusing. He conceded in cross-examination his firm belief the child has been sexually abused, though he conjectured that Mr F or his relative may have been the culprit. He stoutly denied to the second Family Consultant,[25] in his affidavit,[26] and during his cross-examination that he was responsible for any form of sexual impropriety with the child and his denials were reasonably convincing.

   [25] Second Family Report, para 24

   [26] Father’s affidavit, paras 99-100

4. The Independent Children’s Lawyer contended the evidence did not support any finding that the child had been sexually assaulted, and further, the father did not present an unacceptable risk of sexual abuse to the child. Hence, from his perspective, the child could enjoy an orthodox relationship with the father without the need for any supervision.

5. Given the belated commonality of opinion that the father had not sexually abused the child and did not represent an unacceptable risk of sexual abuse to her, it is unnecessary to traverse the evidence about sexual abuse at length.

6. In April 2013, the child made various statements to the mother complaining that her genitals were sore and attributing the soreness to the father. The child was examined by a general practitioner, who found her genitals to be normal in appearance. The doctor reported “no medical concerns or suspicions of sexual assault”.[27] The matter was reported to the Department, but no action was taken and the investigation was considered closed.[28] The mother conceded there could have been many benign reasons for the child’s complaints and the child’s attribution of the cause of her soreness to the father. She accepted she acted impulsively at the time by imputing sexual impropriety to the father.

   [27] Magellan Report, page 3

   [28] Magellan Report, page 3

7. Later, in September 2013, the child again made various statements to the mother complaining that her genitals were sore. After the elapse of some days the mother examined the child’s genitals and found some dry blood. She again immediately suspected sexual abuse by the father and reported the matter to the Department. That report resulted in the child’s examinations by a paediatrician and her interview by members of the NSW Joint Investigation Response Team (“JIRT”). The paediatrician found a fissure injury to the child’s labia, but the parties acknowledged the injury could have been sustained in a myriad of incriminating or innocent ways. It was also acknowledged that the child made no disclosure to JIRT in either of her two interviews that could conceivably implicate the father or anyone else in her sexual abuse.

8. The mother’s nagging doubt about the prospect of the father’s sexual abuse of the child was really premised upon the existence of the child’s genital injury and the contemporaneity of her complaint about the father causing her soreness. It was not unreasonable for her to entertain such doubt, which even the father was impelled to admit in cross-examination. He agreed he would have had the child examined by a doctor, just as the mother did, and he agreed it was not unreasonable for the mother to have suspended the child’s unsupervised visits with him as a protective measure, just as the mother did.

9. The paediatrician said in cross-examination that the child’s genital injury could have been sustained up to several weeks prior to her initial examination and would likely only have caused the child “discomfort” rather than “pain” or “agony” when it was sustained. It might not therefore have been a memorable event for either the child or her carers, so it was unsurprising that the mother, the father, and their respective partners could not recall the occurrence of any event in or about late August or early September 2013 that might account for her sufferance of that injury.

10. Given the concession that the child’s genital injury could have been sustained innocently, in reality, it was the child’s attribution of responsibility to the father for her genital soreness that piqued the mother’s suspicion and concern. However, it is unwise to repose unconditional faith in the representations of young children, particularly those as young as the child, because it is a fact of life that children deliberately or innocently misrepresent objective facts for all sorts of reasons. One reason, as was explained by the first Family Consultant, is that the child considers complaints about one parent to the other is a way of demonstrating loyalty and support and, since the child is loyal to and supportive of both parents, such complaints are respectively made in both households.

11. For example, in recent months the child also made statements to the father and Ms B Hibberd to the following effect, implicating the mother and Mr F in reprehensible conduct:

    Mummy told me not to eat food at Daddy’s [house].

    Mummy told me you [the father] are a bad person.[29]

    Mummy said I was fat.

    [Mr F] hurts me.[30]

    [Mr F] smacked me.[31]

    [Mr F] said that I am not going to come to this [the father’s] house any more.[32]

    Mummy told me that daddy hurt my [the child’s name for her genitals]. I remember mummy telling me it.[33]

    [29] Father’s affidavit, paras 69.5, 69.6

    [30] Father’s affidavit, paras 45-48

    [31] First Family Report, para 51

    [32] Ms B Hibberd’s affidavit, Annexure A

    [33] Ms B Hibberd’s affidavit, Annexure A

12. Both the mother and Mr F denied they said or did any such things to the child. I accept their evidence as truthful, just as I accept as truthful the evidence given by the father and his wife that such things were indeed said to them by the child. That necessarily means the child is prone to make false reports to the parties. For the same reason, the child’s complaints to the mother about the father having caused her to feel genital soreness should not be accepted as truthful and accurate without critical analysis.

13. The child is intelligent and “picks up things quickly”.[34] There is little doubt she is aware of the conflict and distrust that pervades the relationship between the parties. The mother conceded in cross-examination these proceedings have caused her a “high level of anxiety”. The child is also likely aware of the mother’s anxiety about her visits to the father, which probably stimulates anxiety in the child. It would be unsurprising for the child’s demeanour to be attuned to the demeanour of her primary attachment figure and primary carer. The child’s misbehaviour at times proximate to her transition between the parties’ households is plausibly explained by such mutual anxiety. Acknowledgement of that fact was eventually drawn from the mother during her cross-examination. The recent birth of the child’s twin half-siblings and the mother’s diversion of attention from the child to their care might also rationally explain changes in the child’s behaviour within the mother’s home, which according to Mr F included her aggressive behaviour directed at the twins.

    [34] First Family Report, para 37

14. The child’s complaints in the mother’s household about her genital soreness were blamed on a person she referred to as either “Daddy” or “Other Daddy”. It is uncontroversial that Mr F was interchangeably called “Daddy”, “[Mr F’s given name]”, and “Daddy [Mr F’s given name]” by the child. It is similarly uncontroversial that the child referred to the father as either “Daddy” or “Other Daddy”. Consequently, there was room for confusion about whether the child was referring to the father or Mr F when she made her complaints to the mother.

15. In reliance upon the possibility of such confusion, and because of the admitted opportunity Mr F had to molest the child, the father alleged he must be the perpetrator of the child’s sexual abuse. I reject that opportunistic assertion. Mr F’s denial of any sexual abuse of the child was just as convincing as the father’s.

16. I accept as correct the mutual submissions of the parties and Independent Children’s Lawyer that the father does not pose an unacceptable risk of harm to the child through her sexual abuse. Similarly, despite the father’s contrary contention, I also accept that Mr F does not pose an unacceptable risk of harm to the child through her sexual abuse.

Alleged family violence committed by father

1. Despite some equivocation by the father during his cross-examination, there was really no dispute that he acted violently towards the mother in the past. Their dispute concerned the frequency and virulence of his violence. The mother alleged it was serious and pervasive, whilst the father contended it was limited to only a couple of isolated incidents.

2. The mother reported to the second Family Consultant,[35] and later deposed to,[36] grossly violent past conduct by the father, including her imprisonment, forced participation in prostitution and sexual intercourse, and multiple serious assaults.

   [35] Second Family Report, para 42

   [36] Mother’s first affidavit, paras 45, 50-66, 76-81, 87-102, 115-125

3. Other than in respect of an alleged assault upon her by the father in April 2009,[37] which was partially corroborated by the maternal grandmother to the second Family Consultant,[38] the mother’s evidence about family violence directed towards her was uncorroborated. Leave was granted to the mother to adduce evidence from the maternal grandmother,[39] but she did not avail herself of that permission and no explanation was offered for why. The mother admitted the maternal grandmother was present at the Court, even though it was asserted she was unwell. An inference is available and drawn that the sworn evidence of the maternal grandmother would not have assisted the mother’s case (see Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320-321; Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 385).

   [37] Mother’s first affidavit, para 63

   [38] Second Family Report, paras 102-103

   [39] Order 13(c) made on 13 December 2013

4. In isolation, the mother’s evidence about extensive family violence is not particularly convincing for several reasons, despite an opposite conclusion being reached by the second Family Consultant.[40]

   [40] Second Family Report, paras 111, 113

1. The mother could not account to the first Family Consultant for why she did not seek police assistance in relation to the “extreme acts of violence” she alleged against the father.[41] The first time the police became involved was following the father’s assault of the mother at the time of their final separation on 3 October 2010.  

   [41] First Family Report, para 34

2. The mother’s protestations of being forced, against her will, to prostitute herself and to participate in various sexual acts with the father and his male friend are very difficult to accept. True it is that the father drove the mother to the brothel so she could work her shifts, but he was not inside the brothel ministering her every tryst with every customer. She was not enslaved. She ceased prostitution voluntarily some months later when she ceased using the contraceptive pill, without the father’s knowledge, so that she could conceive a child with the father. As for her sexual liaisons with the father and his male friend, the mother has never complained to police of her rape by either of them. She willingly attended the subsequent wedding of the father’s friend, at which the father was a groomsman. It is most improbable she would attend and celebrate his wedding if he was her rapist. The mother admitted in cross-examination her conduct was “not logical” and difficult to reconcile with her evidence of involuntariness. There is no valid basis to conclude the mother was deprived of choice. Her acts were most probably voluntary, albeit perhaps hesitant or reluctant. It is always convenient to blame someone else for regretted life choices.

3. The mother could not reasonably explain why she chose to remain in her relationship with the father if she was so dissatisfied with how she was treated. The answer could not be that she was trapped and unable to escape, either in a literal or metaphorical sense, since it was common ground she chose to separate from the father numerous times during their relationship and live with the maternal grandmother instead. The maternal grandmother told the second Family Consultant she did “everything in her power” to keep the mother from the father but the mother continually returned to the father.[42] The mother was exercising her free will.

   [42] Second Family Report, para 104

4. Objectively, the mother valued her relationship with the father. On her own admission, she willingly conceived the child with the father in 2009 in expectation of raising the child in an intact parental relationship, she organised and paid for the father’s birthday party following one of her voluntary reconciliations with him in January 2010,[43] she castigated the father for his infidelity in March 2010,[44] and she was angry with the father for flirting with another woman at a wedding in October 2010, which led to an argument and her decision to permanently separate.[45]

   [43] Mother’s first affidavit, para 109

   [44] Mother’s first affidavit, para 112

   [45] Mother’s first affidavit, paras 116-125

5. Similarly, the father’s evidence was also less than convincing. The admissions he made about his past family violence were not persuasive expressions of remorse. He deflected blame to the mother and minimised his own role in such violence when he conferred with both Family Consultants.[46] During his evidence he obfuscated about the extent of his violent behaviour on the two occasions in January 2009 and October 2010 in respect of which he did concede assaulting the mother or acting violently in her presence.

   [46] First Family Report, paras 22-23; Second Family Report, paras 27-28

6. The father was only ever cross-examined about those two episodes of family violence to which he admitted anyway. Although the versions of the mother and father about those two incidents are quite disparate, the father still did admit to treating the mother violently or behaving violently in her presence on those occasions. Though he was not asked specifically about it during his cross-examination, the father incidentally denied forcing the mother into involuntary prostitution.

7. If a positive finding was sought by the mother about much more extensive violent conduct committed by the father towards her than he admitted then it was incumbent upon her legal representatives to put the allegations squarely to the father for his approbation or rejection (see Browne v Dunn (1893) 6 R 67; Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 387-388), but that was not done.

8. There is no doubt the father did commit family violence upon or towards the mother, but it is difficult to discern its severity. In all probability it was worse than the father admitted but not as serious as the mother alleged. It may be the mother has convinced herself that the violence was as bad as she now alleges, but the evidence does not objectively support that conclusion. As the High Court has pointed out, the allegations of misconduct between the parties are not the ultimate issue in the proceedings and it is a mistake to think the Court is obliged the resolve the disputed allegations in a definitive way. Often there are strong practical family reasons why the Court should refrain from making positive findings (see M v M (1988) 166 CLR 69 at 75-77).

9. Section 60CC(2)(b) of the Act directs the Court’s inquiry to the future, requiring contemplation of the risk of harm to the child through her exposure to family violence. Of course, integral to the assessment of the existence and level of that risk is the actuality of the child’s past exposure to family violence, but that is not the only consideration. Other important objective facts bear upon the assessment of the risk of the child being harmed through witnessing family violence perpetrated by the father in the future.

10. The parties finally separated some years ago in October 2010. The mother adduced no convincing evidence of any family violence since then. There was undoubtedly a past apprehended violence order made for the protection of the mother from the father in 2011, but it related to an alleged threat of suicide by the father, the seriousness of which was feasibly misconstrued by the mother, and the order was not contested by the father to avoid expense and inconvenience. The father’s subsequent breach of the order related only to him attending the mother’s home, not because he was violent or threatened violence. The father was not challenged about his assertion the mother invited him to her house and occasionally willingly engaged in sexual intercourse with him, notwithstanding the existence of the order,[47] although the mother denied it when she was challenged during her cross-examination.

    [47] Mother’s first affidavit, paras 132-147; Father’s affidavit, paras 12-18, 21-26, 30

11. Mr F, although only recently married to the mother, has known her for years. He confirmed to the first Family Consultant over a year ago that there was no “overt aggression” between the parties.[48] He told the second Family Consultant the only time he was aware of any family violence by the father was when the mother asked him to fix a hole in a wall caused by the father during a rage,[49] which incident the mother deposed occurred years ago in January 2009.[50] The father admitted causing that damage during his cross-examination.

    [48] First Family Report, para 58

    [49] Second Family Report, para 96

    [50] Mother’s first affidavit, paras 50-55

12. The father is also now married. There was certainly no evidence of any violence between the father and Ms B Hibberd. In fact, there was positive unchallenged evidence there was not. They have a harmonious relationship which is free of violence.[51]

    [51] Second Family Report, paras 29, 72; Affidavit of Ms B Hibberd, para 25

13. It should not be overlooked that the mother voluntarily allowed the child to begin spending unsupervised overnight time with the father in November 2012 and she consented to interim parenting orders formalising that arrangement in December 2012. The mother would not have agreed to that arrangement unless she thought the child’s best interests would thereby be promoted and, significantly, the child was not at any risk of harm through exposure to family violence by the father.

14. When the mother conferred with the first Family Consultant in April 2013 she told him she only wanted what was best for the child and that if the Court deemed the parenting arrangements operating pursuant to the orders of December 2012 were in the child’s best interests then those arrangements should continue. She made no complaint about past family violence affecting the child’s ongoing relationship with the father. She was simply concerned about the father not having “any boundaries” in respect of the child’s behaviour.[52] The only objective reason for the mother’s change of attitude about the child’s continuing interaction with the father was her belief, formed later in April 2013, that the father sexually abused the child.

    [52] First Family Report, paras 10, 42

15. The prospect of the child’s harmful exposure to the father’s perpetration of family violence in the future remains existent, but the risk could not be quantified as unacceptably high. The risk is not so great as to require the child’s supervision when with the father, as the mother proposed. The reasons for that conclusion are the absence of family violence between the parties for a period of years, the absence of any evidence of family violence between the father and his wife, and the mother’s willingness to allow the child to spend unsupervised time with the father before the sexual abuse allegations were raised.

Alleged family violence committed by mother’s husband

1. The father asserted his concern about Mr F’s propensity to assault his domestic partners.

2. The father alleged Mr F assaulted his former partner,[53] which Mr F denied both to the second Family Consultant[54] and during his cross-examination. I accept the efficacy of Mr F’s evidence in that regard.

   [53] Second Family Report, para 32

   [54] Second Family Report, para 92

3. The mother flatly denied Mr F was violent towards her and told the second Family Consultant she would terminate her relationship with him if he was violent.[55] There was undoubtedly a violent incident between the mother and Mr F in their household in December 2013, when Mr F kneed the mother in the face causing her nose to bleed, but the mother and Mr F both maintained the incident occurred accidentally during the course of an argument. Although Mr F was charged with assaulting the mother, the charge was dismissed. Nonetheless, with the consent of Mr F, an apprehended violence order was made protecting the mother from him.[56] I accept the evidence of the mother and Mr F in respect of the incident between them in December 2013.

   [55] Second Family Report, para 50

   [56] Mother’s first affidavit, paras 257-272; Mr F’s aff, paras 37-49; Exhibits M4, M5

4. Just as was the case when the father previously consented to an apprehended violence order being made in favour of the mother against him, the NSW Local Court did not need to be satisfied that the mother had reasonable grounds to fear for her safety when the order in her favour was made with Mr F’s consent (see s 78(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

5. There may be some risk, but I am not satisfied that the child is at unacceptable risk of exposure to family violence in the mother’s household.

Best interests of the child – additional considerations

1. The child has lived permanently with the mother since the parties’ separation. The father and members of the paternal family generally regard the mother as a capable parent and they were complimentary about her parenting capacity.[57] Nevertheless, the father proposed reversal of the child’s residence because he considered the mother was unable or unwilling to support the child’s relationship with him into the future. That is an important consideration because, generally speaking, children benefit from healthy filial relationships with both parents (see U v U (2002) 211 CLR 238 at 285-286; M v M (1988) 166 CLR 69 at 76).

   [57] Second Family Report, paras 35, 88

2. Some features of the evidence did tend to demonstrate the mother’s inability or unwillingness to promote the child’s relationship with him, but there were countervailing aspects of the evidence.

3. Following the parties’ separation, the mother sent text messages to the father clearly indicating her unwillingness to let the child spend time with him.[58] I accept that evidence because the father was not challenged about it. However, after the elapse of about two years, in November 2012 the mother agreed to allow the child to spend overnight time with the father without supervision. The most likely inference is that the mother sent the earlier messages while her fear of the father’s violence was still subsiding. Once her fear had subsided sufficiently, she was content to countenance a regular relationship between the child and the father. That arrangement was disturbed in April 2013, but only by the sexual abuse allegations.

   [58] Father’s affidavit, paras 12, 35-38, 42-43

4. The Court made interim orders in August 2013 for the child to spend unsupervised time with the father, notwithstanding the unresolved sexual abuse allegations. The mother was dissatisfied with those orders, which she forcefully opposed. Within days of the Court’s interim judgment she complained to police about the imminent resumption of the child’s relationship with the father.[59] Despite her disaffection and trepidation, she did comply with the Court’s orders.

   [59] Exhibit F1

5. The suspension of the orders in early September 2013 followed the fresh sexual abuse allegations, of which the mother was convinced because of the child’s genital injury. The suspension of the Court’s orders was caused by the issue of a provisional apprehended violence order by police, not by reason of the mother’s unilateral belligerence.

6. Fresh interim parenting orders were made by the Court in December 2013 and the mother has since faithfully complied with them.

7. It is concerning that the child told the JIRT officers during her interview that her surname is “[Mr F’s surname]” when it is in fact “[the mother’s surname]”. It is also concerning that the child has felt inclined or empowered to refer to Mr F by the special name of “Daddy”, particularly in circumstances where the mother professed to have tried her very best to prevent it. Those facts tend to suggest the child is caused or allowed to be confused about her paternity, which confusion may impinge upon the filial relationship she enjoys with the father. The objective inference urged by the father, that the mother is content for Mr F to replace him as the father figure in the child’s life, is difficult to resist. Nonetheless, the mother flatly denied she had an “intense dislike” of the father and was attempting to alienate the child from him. Her evidence on that issue seemed reasonably credible.

8. The father was worried that, in the event the child remained living with the mother, she would not comply with any orders that required her to facilitate the child spending regular unsupervised time with him because of her asserted continuing belief in the risk of harm posed by him to the child. He considered such an outcome would not correct the current impasse between the parties.

9. The probable flaw in the father’s analysis is his ignorance of some evidence the mother belatedly gave and the concessions she made in final submissions. The mother said that, although she would appeal any orders with which she was dissatisfied, she would still comply with any existing orders. She eventually conceded the father did not pose a risk of sexual abuse to the child. While she still asserted the father’s tendency to violent conduct was a continuing potent risk to the child’s psychological health, for reasons already explained, that belief cannot be objectively vindicated.

10. However, if after having deposed to her willingness to comply with Court orders the mother subsequently contravenes the orders without reasonable excuse then fresh litigation about the child will probably ensue and the mother’s duplicity would be an important feature of those proceedings. Without predicting any outcome, the Court would then have few viable options besides reversal of the child’s residence.

11. Of course, mere literal compliance with Court orders still falls short of genuine commitment to the promotion of the child’s relationship with the father. It is still possible for the mother to ensure implementation of the orders while simultaneously signalling to the child she is dissatisfied with the child’s ongoing relationship with the father. It would be particularly insidious to undermine the relationship in such a deceitful way. These proceedings, however, appeared to be both a cathartic and chastening process for the mother. She appeared to have been enlightened and educated by evidence and concepts about which she had not previously given thorough thought.

12. Ultimately, while I am still left with reservations, on balance I am satisfied the mother will do as she says and both comply with the Court’s orders and encourage the child’s relationship with the father.

13. Any orders that provide for reasonably frequent exchange of the child between the parties are reasonably practicable and inexpensive to implement since the parties live relatively close by in the lower Hunter Valley of NSW.[60]

    [60] Second Family Report, paras 7-9

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because of the father’s undoubted past commission of family violence upon the mother (s 61DA(2)).

2. The mother, father, and Independent Children’s Lawyer mutually proposed the allocation of sole parental responsibility for the child, though the recipient of such responsibility would depend upon the designated residential parent. The uniformity of their opinion is instructive. The contrary opinion of the first Family Consultant was a voice in the wilderness.[61]

   [61] First Family Report, para 11

3. Even though the presumption does not apply, I am not satisfied that the child’s best interests warrant the allocation of equal shared parental responsibility. The parties’ conflict has been too ruinous to permit them to constructively and courteously discuss and negotiate issues of major significance to the child, as the law would require of them (s 65DAC).

4. The father could not even bring himself to refer to the mother by name. He said in cross-examination “it’s very trying to be civil to the ‘other party’”. He did not bother to try and speak with the mother to re-assure her he had not sexually abused the child because he believed his explanation would have “fallen on deaf ears”. The mother previously tried to implement the use of a communication book, but that was seemingly a failure.

5. The only tenable outcome is for one party to have sole parental responsibility for the child, and that party should be the parent with whom she lives.

6. The child should live with the mother. She has always done so. The only reason the father proposed reversal of the child’s residence was to ensure she can enjoy meaningful relationships with both parents. On balance, I am satisfied that will occur even though she remains living with the mother.

7. The two Family Consultants uniformly explained that the child would suffer significant emotional upheaval if she was removed from the mother’s care, as that would rupture her relationship with her primary attachment figure and also disturb her new sibling relationships. No risk of harm in the mother’s household outweighs the certainty of emotional harm the child would suffer through removal from the mother’s primary care. I am also satisfied that the father is not as comprehensively attuned to the child’s emotional needs as the mother. He has a tendency to assertiveness with the child that could cause, and has caused, her acute distress.[62]

   [62] Exhibit ICL5

8. Given the child will remain living with the mother, attention must turn to the child’s expenditure of time with the father.

1. The mother maintained the time spent by the child with the father should be supervised for a period of two years or longer, depending upon the fulfilment of other conditions. It was explained in final submissions that the supervision had a dual purpose – principally to abate the risk of the child’s exposure to the father’s family violence, but also to abate the mother’s anxiety about the prospect of the child’s sexual abuse. I reject the proposal for supervision on both counts.

2. As already explained, the father does not present an unacceptable risk of harm to the child, either through her exposure to family violence or her subjection to sexual abuse. The safety of the child does not require the imposition of supervision.

3. As the first Family Consultant explained during cross-examination, the imposition of supervision is not an appropriate remedy for the mother’s anxiety either, which condition is properly remedied by the mother’s submission to counselling. It was faintly implied that, absent the imposition of supervision, the mother’s unabated anxiety may cause her parenting capacity to deteriorate, with concomitant disadvantages for the child. I reject that implication. The mother clearly said in cross-examination that, despite the “high degree of anxiety” she experiences, she still does “everything [she] needs to do”, which she elaborated to mean she still successfully runs her household, still looks after her three children, and still generally presents as a happy person.

4. Since the imposition of supervision is unnecessary, it need not hinder the child’s relationship with the father, either as to the duration or frequency of the time they spend together. I accept the Independent Children’s Lawyer’s proposal that the parenting regime should incorporate visits by the child to the father each alternate weekend, for half of school holiday periods, and on other special occasions. Neither party engaged that particular debate because they were both pre-occupied contending for the residential care of the child and the requirement for only occasional short supervised visits by the child to the other. Significantly, however, the mother’s proposal countenanced an outcome of that type after the eventual dispensation of supervision and the fulfilment of a variety of other conditions, all of which have been found to be unnecessary. The orders therefore generally reflect the Independent Children’s Lawyer’s proposal. The visits with the father on alternate weekends expand slightly once the child starts school. The father’s work commitments are sufficiently flexible to permit his compliance with orders of that sort, particularly when he has the assistance of his wife and the paternal grandparents.

5. It is unnecessary for the father to successfully undertake an indefinite bout of counselling and treatment for “anger management and domestic violence”, as the mother proposed,[63] because he is not currently disposed to uncontrolled anger or violent behaviour. His conduct over the last few years satisfactorily proves that fact. Even if such counselling and treatment was desirable, the order proposed by the mother was really aspirational rather than definitive. Would a certificate given by the therapist of the father’s successful completion of treatment really satisfy the mother? If it would, why is the father’s mere participation in some counselling sufficient to convince her of the father’s transformation? If it would not, the order is pointless since her concerns would not be assuaged.

   [63] Exhibit M6, Order 5

6. It seems that nothing is to be gained by requiring the parties to undertake post-separation parenting programs, pursuant to s 65LA of the Act, in an effort to improve their capacity to co-operatively parent the child. They have both already completed such programs.[64]

   [64] First Family Report, paras 29, 39

7. The orders provide for the parties to exchange the child at the McDonalds Restaurant at Town I, NSW. That reflects the existing interim order[65] and the mother’s proposal,[66] which the father did not dispute. When the child starts school her collections and returns may be effected at school.

   [65] Order 4(c) made on 23 August 2013

   [66] Exhibit M6, Order 9

8. The orders provide for weekly telephone communication between the child and the father. A similar provision is made for weekly telephone communication between the child and the mother when the child is spending time with the father during holiday periods. That order was not the subject of any evidence or submission, but it reflects the child’s best interests in the mid to long term.

9. An injunctive order is made preventing the parties from causing or allowing the child to refer to anyone but them by the terms of endearment “Mum” and “Dad”. Those special names should be reserved by the child for her biological parents. Again, that order was not proposed or argued, but it is justified by the confusion experienced by the child in referring to both the father and Mr F by interchangeable terms.

10. It is unnecessary to make the supplementary order proposed by the mother obliging her to submit the child to counselling.[67] The mother may make that decision as an incident of her sole parental responsibility for the child.

    [67] Exhibit M6, Order 10

11. The Court lacks power to make an unconditional mandatory injunction forcing the mother to submit to counselling,[68] as she conceded during final submissions (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]). Even if the power existed, it would likely be pointless forcing the mother to participate in therapy unless she was a willing recipient. If she is already a willing recipient an order is unnecessary anyway.

    [68] Exhibit M6, Order 11

12. The remaining orders are either generally reflective of sensible proposals or could not be the subject of sensible resistance.

13. The father sought an order for costs against the mother.[69] That issue was not canvassed in either the evidence or submissions so the issue of costs is reserved for 28 days.

    [69] Amended Application 17/1/14, Order 5

I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 May 2014.

Associate: 

Date:  19 May 2014