JASENTU& SUWANDARATNE

[2015] FamCA 870

FAMILY COURT OF AUSTRALIA

JASENTU& SUWANDARATNE [2015] FamCA 870

FAMILY LAW – CHILDREN – Interim Parenting – With whom the child lives and spends time – unacceptable risk of harm

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAC.

Dieter & Dieter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346.

SS & AH [2010] FamCAFC 13

APPLICANT: Ms Jasentu

RESPONDENT: Mr Suwandaratne

INDEPENDENT CHILDREN’S LAWYER: Ms Soliman

FILE NUMBER: PAC 3048 of 2015

DATE DELIVERED: 25 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 10 August, 25 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Brien

SOLICITOR FOR THE APPLICANT: Coleman Greig Lawyers

COUNSEL FOR THE RESPONDENT: Ms Druitt

SOLICITOR FOR THE RESPONDENT: Cameron Gillingham Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Parramatta

Orders

IT IS ORDERED PENDING FURTHER ORDER THAT

1. The child is to live with his mother.

2. The child is to spend time with his father each alternate weekend from 5pm on a Friday until the commencement of pre-school or school on the following Tuesday to commence on 2 October 2015. In addition the child is to spend supervised time as previously arranged on Saturday 26 September.

3. Commencing in the Easter school holiday 2016 the child is to spend half of that school holidays period with his father.

IT IS ORDERED THAT

1. The document headed “In the Family Court of Australia at Parramatta Proceedings No. PAC 3048 of 2015” dated 25 September 2015 and signed by the parties shall become Court’s Exhibit “A” in today’s proceedings.

1. By consent, orders are made in accordance with paragraphs 1 to 7 of the Court’s Exhibit “A”, as follows:

   1.That Dr B be appointed by the Court pursuant to Chapter 15 of the Family Court Rules to enquire into and report to the court on matters relating to the welfare of the child, C (the child) born…2010.

   2.Such report shall include but shall not be limited to:-

   (a)Any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)The nature of the relationship between the child with each of the child’s parents and with significant other persons;

   (c)The likely effect of any changes in the child’s circumstances, including the likely effect on the children of any separation from:-

   (i)either of the parties; or

   (ii)any other child, or significant person, with whom the child has been living or it is proposed will live.

   (d)The practical difficulty and expense of the child having time with a party and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parties on a regular basis;

   (e)The capacity of each party, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

   (f)The child’s maturity, sex and cultural background and any other characteristics of the children that the reporter thinks are relevant to the children’s welfare;

   (g)Any physical or psychological abuse or sexual impropriety that the child has been or is likely to be subjected;

   (h)Any ill treatment, family violence or other abusive behaviour that was directed toward a member of the child’s family, extended family or significant person and the likely impact of this on the children;

   (i)Each parent’s attitude to the child, and to the responsibilities of parenthood;

   (j)Any other matter considered relevant by the expert.

   3.That each party shall pay half the costs of the Expert not less than 28 days prior to the first interview with such funds to be deposited into the NSW Legal Aid Commission Trust Account.

   4.That the solicitors for the father prepare a draft briefing letter within 7 days and submit the same for settlement by the solicitor for the mother and the parties shall attend upon Dr B as requested. 

   5.Leave to the ICL to copy all materials on subpoena for the purpose of briefing Dr B.

   6.Liberty to the ICL to relist by arrangement with Associate to Hannam J as to any difficulties arising as to the briefing of Dr B or the release of the report.

   7.That each parent shall meet one half of all the costs and additional associated costs with:

   (a)Dr B in the context of preparing and or completing the report; and

   (b)Dr B attending for cross-examination.

2. Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

Notations

1. The Court is likely to be assisted in relation to holiday time after April 2016 by evidence of the success or otherwise of the first period of shared holiday time in April 2016 and the experience of the child in settling into school.

2. The child is currently enrolled in D Childcare/Pre-school Centre, Suburb E on Monday, Tuesday and Friday each week. This pre-school is affiliated with F School in Suburb E and it is intended by the parents that the child be enrolled in that school to commence in 2016.

3. The parents will use their best endeavours to encourage the child to sleep in his own bed.

1. Each of the child’s parents celebrate Christmas and wish for the child to spend some time with them respectively on Christmas Day. The parties are to use their best endeavours to reach agreement whereby the child is able to spend time with each of his parents during the Christmas period.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3048 of 2015

Ms Jasentu

Applicant

And

Mr Suwandaratne

Respondent

REASONS FOR JUDGMENT

1. This is an application for interim parenting orders in relation to a little boy, B, who is almost five years old.  The child’s parents separated in June 2015 following a seven-year marriage.  the child is their only child.

2. The mother commenced parenting proceedings on 25 June 2015.  She proposes interim orders that the child live with her and spend time with his father each Thursday for three hours and each alternate Saturday for three hours and that such time be supervised by a supervised contact service.  She also seeks other ancillary orders in relation to education, communication, non-denigration and the like. 

3. The father sought interim orders that would see the child live in an equal time arrangement between the parents with changeovers occurring six times per fortnight.  He also seeks other ancillary orders.

4. When it was suggested to the father that the Court may be of the view that this number of changes each fortnight between parents who are in an extremely high level of conflict may not be in the child’s best interests, the father proposed that the equal time arrangement be on a week about basis.

5. On 10 August 2015 when I heard the application for interim orders, consent was given by each of the parties to some of the interim orders sought in the father’s response and orders in the terms consented to were made on that date. 

6. This judgment deals with the balance of the parents’ respective parenting applications which essentially relate to the live with and spend time with arrangements. 

7. The mother in these proceedings is a 42 year old health professional.  The father is a 51 year old health professional.  Both parents were born and raised in Sri Lanka and came to Australia to live for university or employment.  The parents lived together for a short time before they were married in 2008.  From time to time throughout the marriage, the paternal grandmother stayed with the family, on some occasions for a matter of months.  The maternal grandmother would also visit and stay with the family on occasion.

8. The parents’ only child was born in 2010.  The mother was not working when the child was born.  The child began attending preschool three days per week from January 2013 and from around mid-2013, the mother began working on a part-time basis.

9. From around April 2013, the parents began the practice of allowing the child to sleep in the parents’ bed, lying between them every night. 

10. The mother returned to full-time work in January 2014 on a week-on-week-off basis and a nanny was employed to assist in the care of the child.  The paternal grandmother also assisted in the care of the child when she was visiting from Sri Lanka.

11. From August 2014 according to the father, or around February 2015 according to the mother, the father reduced his working hours while the mother continued to work full-time on a week-on-week-off basis.  Both parents agree that from at least February 2015, the father became much more actively involved in the care of the child.

12. The mother alleges that from around this time, February 2015, the father did not permit her to take the child to various activities in which he was enrolled during the week that she was not working.  The father describes the situation as simply one in which he was significantly involved in the care of the child. 

13. Both parties agree that there were arguments in relation to who the child should be spending time with.  From about March 2015, the father proposed that the child be cared for separately by each of the parents on an equal time basis.  The mother describes this as a parenting arrangement which she says was forced on her in an attempt by the father to alienate the child from her, whereas the father describes it as in an effort to avoid conflict around the child’s care arrangements.

14. It appears that both parties acknowledge that they had difficulties in their marriage from around February 2015, though the extent of those difficulties is a matter of dispute.  The parents continued, however, to sleep in the same bed and the child slept with them except on two particular occasions. 

15. The mother left the family home on 20 June 2015, taking the child with her.  The mother also removed the child from the preschool in which he was enrolled, discontinued activities in which he had been engaged and changed his general practitioner. 

16. Since her departure, the mother has only permitted the father to spend time with the child for one period of three hours each week and a second period of three hours each alternate week supervised by a contact service.

17. The father has at all times opposed supervision but feels he has no alternative if he is to spend time with the child as the mother has insisted upon it. 

18. Three occasions of supervised time had occurred as at the time of the interim hearing.  A number of further occasions have also occurred since then and reports have today been provided in relation to those time events. 

19. After the hearing of the interim application on 7 September 2015, the child and the parents participated in a Children and Parents Issues Assessment as part of the Child Responsive Program and a memorandum prepared by the family consultant was made available to assist in the interim orders application. 

Matters in dispute

1. In addition to the uncontested facts, in accordance with the decision of SS & AH[1], the court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean that the Court can ignore concerns that are raised in the material before it.  And in that regard, I refer to George & George[2], a decision of the Full Court, which also cites Dieter & Dieter[3]. 

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82

3. In Dieter (supra), the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. The mother raises a number of concerns which I understand she suggests give rise to a risk of harm to the child which would occur on the father’s proposal and which necessitates the supervision of the child’s time with the father.  She contends that the child has been exposed to family violence, that the father has tried to alienate the child against her and she also suggests that the father has possibly behaved in a sexually inappropriate manner towards the child.

5. Each of these matters, in my view, if they have occurred, are capable of causing a serious adverse impact upon the child.  However, some consideration must be given to the probabilities of the harmful events that the mother alleges have occurred which give rise to the alleged risk of future harm.

Family Violence

1. The mother alleges that she was the victim of verbal abuse and denigration perpetrated by the father and his mother throughout the marriage.  The mother also alleges that the father was controlling and violent towards her and alleges a number of specific violent incidents in the presence of the child.

2. The father denies the mother’s allegations of family violence and contends that on occasions, it was the mother who was violent towards him.  He also denies controlling behaviour on his part and sets out in his affidavit his contention that the mother had a great deal of personal autonomy and was not controlled by him in any manner.

3. It is difficult at this stage to make any findings with respect to these allegations but it is noted that there is no suggestion by either parent that the child has been exposed to family violence since separation or that there is a risk that that may occur under either proposed interim parenting arrangement.

Alienation

1. The mother claims that after the equal care arrangements began in February 2015, the father insisted on taking the child to preschool and other activities.  There were a number of occasions where the child protested and said that he wanted his mother to take him to an activity.  The mother also outlines a number of instances between February and April 2015 where she says she felt sad and hurt that she was not attending the activities with the child and was concerned about the pressure that was placed on the child.  It is the mother’s contention that this involvement by the father in the care of the child is part of his alienation of the child against her. 

2. Although the mother describes her concerns about the father’s level of involvement in the child’s care as alienation, in my view there is no evidence that the child’s relationship with his mother has been in any way damaged.

Sexual misconduct

1. It is the mother’s case that the father has possibly behaved in a sexually inappropriate manner with the child and she outlines a number of incidents which give her concern in this regard.  The father denies any inappropriate contact with the child at any time.

2. The mother’s first area of concerns relate to showering and personal care.  In her affidavit, the mother says that although the child would have a shower by himself prior to February 2015, from this time onwards, the father would shower the child for around 50 minutes on each occasion during which the bathroom door was locked.  The father denies ever locking the bathroom door and says that the mother has often come into the bathroom while he was bathing the child and has taken photographs or videos.  According to the father, his involvement in the care of the child began in or around 2014 and included bathing and showering him. 

3. The mother also says that she is concerned by the father’s comments to the effect that only he can shower and feed the child properly.  She says that on one occasion in or around February 2015 when she walked past the bathroom, she heard the father say to the child “let me rub your penis and clean it for you.”  She says that she was not concerned that there was anything untoward in that comment and that her principle concerns are that the father showers the child for a long period of time and says he is the only one who will clean the child properly.

4. The mother alleges that in February 2015 when the child was jumping on her bed happily and in the course of talking about day-to-day events, he said words to the effect of “in the night … [the father’s] trouser comes down and my head goes up and deep inside.”  The mother said that this was during the time when the child was sleeping between the father and her in bed and “she did not think anything of the comment.” 

5. The mother refers to an incident which she says occurred in April 2015 when she came to bed and the father and child were already in bed.  She says felt the child “rocking on to [her]” and saw that the father “was very close to [the child] and [the child] was slightly under [the father].”  She says that she did not say anything as she could not think of the right words to say. 

6. The mother says that the father told her that the “50/50” care arrangement would involve the child spending alternate nights with each parent.  She also outlines in her affidavit arguments between the parents in which the child was involved or to which the child was exposed over which parent the child was to sleep with but says that other than on two occasions, the three of them continued to sleep in the same bed.

7. The first occasion the mother said she slept separately was on 13 June 2015 when she slept on a single mattress in the child’s room and the father slept in the matrimonial bed.  The mother said that although the child had been toilet trained by this stage, he “wet himself” a number of times throughout the week between 13 and 20 June 2015 when it appears there was a significant level of argument between the parents. 

8. In her affidavit, the mother outlines an incident that she says occurred on 14 June when she could hear the child in the bathroom calling out in pain.  She said that when she walked into the bathroom, she saw the father leaning over the child and it “looked like he had had his hand near [the child]’s bottom” but there was “no toilet paper there”.

9. The mother claims that on 18 June, the child told her “it is hurting,” and pointed to his penis in the presence of the father.  She says that the father suddenly changed his temper, involved the child in the argument with her, yelled and swore at her and threw his hand across her face and closed the door.

10. On 19 June 2015, the mother says that the child said to her “Peaches put his paw up my bum” which caused her to become very concerned.  Peaches is apparently the household pet Labrador.

11. The father denies any form of improper sexual behaviour towards the child.  He says that the mother first made an accusation along these lines on 26 February 2015, when she alleged that the father was “sexually abusing the child with the door locked”.  The father said that on a day in March 2015, in the course of the conversation, the mother told the father that the child reported the father “abusing” and “violating” him.  Although the mother told the father she could not allow the child to sleep with the father, the sleeping arrangements which involved the three of them sleeping in the same bed continued until separation except on two occasions.

1. So far as the allegations of improper touching in the course of showering the child or assisting him in the toilet are concerned, the father says that he has performed the majority of the child’s bathing and washing since the child was a baby.  The father gives details of a number of incidents between 13 June and 20 June that involve conflict between the parents over issues of care of the child in the presence of the child.  On 14 June, the father says that when he offered the child a shower at bed time, the mother called him a paedophile in the child’s presence.

2. The father says that on two occasions in the week leading up to 20 June 2015, the mother came into the bathroom while he was washing the child’s bottom, which was done in accordance with the “eastern way of washing after toileting” by use of a hose attached to the toilet.  On each of these occasions, the father said the mother accused him of abusing the child when he was washing the child’s bottom. 

3. On 18 June, the father said that when the child complained of a sore bottom and the father suggested applying some cream to it, the mother intervened and did it herself.  The father says that after the child fell asleep that night, the parents had an argument concerning the issue and the mother accused the father or being a paedophile and suggested that he had digitally penetrated the child. According to the father, the mother also said, “I have told everyone, my brother, my friends and family that you are a paedophile.  I will take the child away from you and you will never have access to him,  I will destroy you,  I will kill you.” 

4. The father says that on the following day, 19 June, at bedtime the mother suggested the child sleep with her in another room.  He says the child wanted to sleep with him but the mother took the child with her to another room and the child insisted that the father lie next to him on a mattress on the floor. 

5. The following day, the mother left the family home and took the child with her.

6. According to the father, on 19 and 23 June 2015, the mother took the child to a new medical practitioner.  This doctor told the father that the reason the mother had taken the child to him was due to her concerns about sexual abuse and because the mother said that the child was anxious and withdrawn.  The father says he was told by the general practitioner that there was no clinical evidence of sexual abuse. 

7. In relation to the disclosures the mother says the child made concerning the father’s pyjama trousers, the father said that the mother has never reported this complaint to him.  He also says that he does not wear pyjama trousers to bed and has always worn a sarong. With respect to the cleaning of the child following toileting, the father says, on occasions, the child has complained, particularly during winter when the water is cold.  The father says that the mother is well aware that the child’s bottom has been washed throughout his life. 

8. I am of the view that, having weighed the probabilities of the competing claims, that I cannot make any positive finding that the father has acted in a sexually inappropriate manner towards the child for the following reasons. 

9. If the mother’s version were to be accepted, she had no concerns about the father’s remarks about him rubbing the child’s penis to clean it or the child’s disclosure about the father’s trousers coming down.  If this is the case, it is difficult to understand why these matters are included in the mother’s affidavit. In any event, it seems to be that her real concerns relate to the length of time the father takes when showering the child and the incident where the father had his hand near the child’s bottom when assisting the child in the toilet.  However, it is not clear what she is alleging or why these matters are said to give rise to a possible risk of harm.  Further, her alleged concerns about the father’s behaviour towards the child are inconsistent with her continuing to sleep in the same bed with the father and the child (other than on two occasions) or allowing the father and child to continue to sleep together.

10. Ultimately, it seems that the incident that gave the mother most concern was the bizarre disclosure by the child concerning the family dog on 19 June 2015.  Even then, it is not clear how this disclosure is said to relate to the father.  The concerns about this disclosure and all matters of “possible inappropriate sexual behaviour” are unclear and I accept the submission made on behalf of the father today that they are vague and nebulous. 

11. In her affidavit, the mother says that she attended a police station on 22 June 2015 and “made a report in relation to [her] concerns regarding the child’s care whilst with [the father]” but she does not indicate the nature of her concerns in her affidavit. No police reports have been tendered on this application and it is unclear whether the mother provided a statement to police or whether any investigation by police or JIRT has been commenced.  It appears that the police have taken no action as a result of the mother’s reports. 

12. The father says that on 28 February, 25 April, 13 June and 20 June, there was police involvement with the family but on none of these occasions did the mother allege to police that the father had inappropriately dealt with the child.  The failure to bring these matters to the attention of police, in my view, is inconsistent with anything untoward having occurred or the mother genuinely believing that it had occurred.

13. The mother also contends in her affidavit, and when speaking to the family consultant, that the child wetting himself and refusing to sleep with the father are related to sexual abuse.  The family consultant stated in her Memorandum that both parents should be aware that this behaviour could also be the child’s reaction to the toxic level of conflict between the parents.  I agree with the submission made on behalf of the father that this is a significant matter to consider.

14. I also agree that there is some comfort, though of course it is not a final view, in some of the matters contained in the Child Responsive Program memorandum including, in paragraph 11, the report that the child denied feeling fearful of his father in any way and said that his father did not make him uncomfortable, and the child informing the family consultant, reported at paragraph 15, that both parents had touched him in his private parts and he estimated this occurred a couple of times a year and in circumstances if he had a rash or his bottom was sore.

15. The father has also worked as a health professional since 1994, including having placements at G Hospital.  In general, approximately one quarter of his patients are children.  He says he has never been the subject of any complaint about inappropriate conduct with children throughout his career.  In my view, the father’s position and good character is a relevant factor in his favour in determining the likelihood of him behaving in a sexually untoward manner towards his child.

The law

1. The relevant principles in relation to parenting at interim proceedings are set out in Goode & Goode[4]. 

   [4](2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346.

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. Section 60CA provides, having decided whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

3. Goode (supra) sets up a framework for the conduct of interim proceedings.  The Court is required to identify the competing proposals, identify the issues in dispute and identify the agreed or uncontested facts.  For the reasons earlier discussed, the contested facts must also be considered, especially where, as is the case here, issues of risk to the child are raised.

4. In Deiter (supra), the Full Court said that, when making an interim order, a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the child under consideration.  This matter is still in its very early stages.  The parties have agreed that a Chapter 15 expert is to be appointed but that has not yet occurred.  In these circumstances, the interim orders are likely to be in place for a matter of many months.

5. So far as the issue of parental responsibility is concerned, the mother is seeking sole parental responsibility on an interim basis. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C provides that each of the parents of a child has parental responsibility for the child. In Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility which has the effect set out in s 65DAC. The Court held that, in the former, as there is no Court order in effect, the parties will exercise the responsibility, either independently or jointly.

6. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of the children must be made jointly, unless the Court otherwise provides. Under s 61DA, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

7. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child or another child, or family violence; or when the court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied. At this interim stage, in my view, it would not be appropriate, in the circumstances, to apply the presumption under s 61DA of the Act that it is in the best interests of the child for the parents to have equal shared parental responsibility for them, as so many critical facts relating to his best interests are unknown or in dispute but that one matter that is not in dispute is the parents’ complete inability to cooperate at this stage in relation to any issue and, in particular, in relation to the child’s parenting.

8. So far as the other orders are concerned, the Court must make such orders as are in the best interests of the child as a result of the consideration of the matters set out in s 60CC. Under this section, in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) and (3).

9. The primary considerations which are contained in subsection (2) are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Section 60CC(2)(a) provides that, in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

10. Both parents accept that the child will benefit from having a meaningful relationship with both of his parents.  Having regard to the undisputed evidence about the role that the father has played in the child’s life, I am also of the view that a meaningful relationship with both parents would be beneficial for him.  Having regard to the meaning given by the Full Court to the expression “meaningful relationship”, I am of the view that the interim orders proposed by the mother – that the child spend a three-hour block period of time with the father once per week and an additional three-hour block once per fortnight – would be insufficient to sustain a meaningful relationship between the two.  The orders proposed by the father for equal joint parenting of the child would provide the child with the benefit of a meaningful relationship with each of his parents.

11. So far as the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence is concerned, the factual basis for this consideration is a matter of significant dispute between the parties.  I am unable to make any positive findings that the child has been subjected to abuse by the father as alleged by the mother for the reasons given.  Further, having weighed the probabilities of the competing claims on the information known, I am not of the view that there is an unacceptable risk of harm to the child that requires supervision as sought by the mother.  Similarly, so far as family violence is concerned, I cannot make any positive finding at this stage.

12. Whilst protection of the child from the impact of the toxic conflict between the parents may not strictly arise under this section, it is nonetheless an important matter to which I have regard.  The concerning symptoms shown by the child which the mother interpreted as indicative of possible sexual abuse are also matters which a family consultant says may arise as a reaction to the toxic level of conflict between the parents.  It is important, in my view, that any proposal as to interim orders includes neutral changeovers which reduce the need for the parents to come into contact for the purpose of protecting the child from conflict.

13. So far as the additional considerations are concerned, I will refer to those which are relevant in the case.

Child’s views

1. In the interviews with the family consultant, as detailed in the Child Responsive Program Memorandum, the child expressed that, of all the adults in his family, his mother was the best at looking after children and that she does everything for him.  the child said that he wanted to live with his mother but also wanted to spend time with his father.  the child denied being fearful of his father in any way or that his father made him uncomfortable.  He also did not indicate that he was fearful of his mother in any way.  Given the child’s age, however, little weight is attached to his views.

Relationships

1. Both of the child’s parents appear to have been significantly involved in his care prior to separation, although they differ in their accounts as to whether the mother had been the primary carer or whether they had equally cared for him.  The family consultant observed that the child interacted positively with both parents and indicated that he wished to spend time with both of them, although the child’s views also suggest that he is more attached to his mother.  Both of the parties, as I understand it, do not dispute that the child previously had a good relationship with his paternal grandmother and that she had had significant involvement in his care.

2. While the mother may not enjoy a good relationship with the paternal grandmother, it is not in the child’s interests to be denied of this relationship with an important person in his extended family, which would occur under the limited time proposed in the mother’s orders. 

The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions, to spend time with and communicate with the child

1. Prior to separation, both parents played a role in decision-making and spending time with the child.  Since separation, it appears that the mother has made the decisions for the child, including removing him from the pre-school in which he was enrolled and changing his general practitioner.  The father has complied with the mother’s requirements for supervision in order to spend time with the child and has spent time with him, supervised by a professional service, from July 2015 to date.

Maintenance of the child

1. The child has lived with the mother since separation and it appears she has been responsible for maintaining him.  It is unknown whether the father has financially supported the child since separation. 

The likely effect of any changes in the child's circumstances

1. The family consultant observed that the child’s claim that he did not want to spend overnight time with his father could be related to the fact that, in order to do so, he needs to separate from his mother, which is, no doubt, sad for him, as expressed by his desire for his parents to reconcile.

2. Since separation, the child appears to have settled into a situation where his mother acts as a primary carer and does everything for him. A significant change in these circumstances, to an equal-time arrangement, as proposed by the father, would likely have an impact upon him, especially as it would involve frequent changeover with parents in a high level of conflict and having no single home base.  However, the current arrangement has only been in place for three months and, prior to that, the father had a significant involvement in the child’s care, so in that regard, it is also likely that the child will easily settle back into an arrangement where his father has more significant involvement in his care.

Practical difficulty and expense associated with spending time with a parent

1. There does not seem to be any issue with practical difficulty or expense of the child spending time with or communicating with the parent under either proposal, though, of course, there is some expense associated with the supervision proposed by the mother and, from the father’s point of view, it is entirely unnecessary. 

Parental capacity

1. So far as the capacity of each parent is concerned, the family consultant observed and the parents agreed that the level of conflict between the parents had reached toxic levels.  Both parents rejected responsibility and claimed the other was the cause of the conflict.  The family consultant observed that it was possible that the parents’ conflict is negatively affecting their capacity to cooperate regarding the child’s needs.

2. On interview with the family consultant, the mother said that the psychologist that had provided marriage counselling to the parents told her that the father lacked insight and suffered from a narcissistic personality disorder.  The father alleged the mother was paranoid about his alleged infidelity and the abuse of the child.  There is no agreed or independently proven evidence that would justify either of these allegations. 

Attitude to the child and to the responsibilities of parenthood

1. So far as the attitude towards the child and the responsibilities of parenthood are concerned, on the mother’s case, given concerns about possible inappropriate sexual conduct, she is acting protectively of the child in restricting the father’s time with the child and proposing that this time be supervised.

2. On the father’s case, the mother’s allegations are false and intentionally contrived for the purpose of the proceedings and are a prioritisation of her own needs above those of the child.  I am unable to make a positive finding as to whether the alleged inappropriate sexual conduct occurred on the information available and so I am unable also to make a determination regarding this consideration.

Family Violence

1. So far as family violence is concerned, the mother makes a number of allegations of family violence perpetrated by the father and the paternal grandmother.  She alleges that the father, on occasions, slapped her on the face, twisted her arm behind her back and pushed her.  She further alleged that she was verbally abused and denigrated by the father and paternal grandmother and she was subjected to the father’s controlling behaviour.  The father denies such conduct.

2. On interview with the family consultant, the mother admitted to pushing the father on one occasion when he was unfaithful to her.  The father claimed that the mother had been physically violent towards him, hitting him in the face.  At this stage, for the reasons given, I am unable to make any positive findings in relation to the allegations made by each of the parents. 

Other matters

1. So far as other relevant matters are concerned, I do have regard to the contents of the reports relating to the father’s supervised time with the child.  The father has spent time with the child on a number of occasions, supervised by a private supervision agency. The reports of these occasions record a positive experience for the child on each occasion, warm interaction between the father and the child, and entirely appropriate conduct on the father’s part.  It is true, as is submitted by the mother, that it would be unlikely that if the father were acting untoward in any manner – highly unlikely that he would do it in the company of a supervisor, so it is of no assistance in relation to the allegations of harm.  It is, in my view, consistent with the family consultant’s observations about the importance of the relationship between the father and the child and is also relevant to that consideration of providing the child with the benefit of a meaningful relationship with each of his parents.

2. In coming to a decision about orders that are in the child’s best interests, I must balance the various matters to which I have referred.  In my view, when balancing the probabilities of the competing claims, as indicated, I am of the view that the child would not be placed at an unacceptable risk of harm in the care of the father that requires that time to be supervised.  Further, having regard to the other primary consideration, I am of the view that the child will not receive the benefit of having a meaningful relationship with both of his parents under the mother’s proposal.

3. Having some regard to the child’s views expressed to the family consultant and also attaching weight to matters such as the nature of the child’s relationship with his parents, to the extent that that is known, the role that each of his parents played in his life before and after separation and the likely effect of any change in the child’s circumstances, as well as the other best interest considerations referred to, I am of the view that it is in the child’s best interests for him to spend significantly more time with his father than under the current arrangement and that that time need not be supervised.

4. I am of the view that the proposal made by the father is in the best interests of the child because, for the reasons indicated, I am not of the view that there are issues relating to risk that would mean that the contact should only be daytime only.  But for the reasons that I gave earlier, I do not think it is appropriate to either change the child’s principal home or have an unclear principal home, such as in an equal shared arrangement, or have an arrangement that involves a great deal of changeover which the father’s original proposal did and which the mother’s proposal continues to be if it’s to be daytime only because there are changes.  For example, on a weekend there are four changeovers. 

5. So for those reasons, the second alternate order proposed by the father is made.

I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 September 2015.

Legal Associate:

Date:  15 October 2015