Jocums and Schlick and Ors

FAMILY COURT OF AUSTRALIA

JOCUMS & SCHLICK AND ORS

[2008] FamCA 1066

FAMILY LAW – CHILDREN – Parenting Orders – Parental Responsibility – Sole parental responsibility but orders requiring consultation – With whom a child lives – Lack of particularity in proposals – Numerous parties – Substantial consent between parties – Unacceptable risk – Sexual abuse - Orders otherwise agreed to

Family Law Act 1975 (Cth)

APPLICANT STEP-FATHER:

Mr Jocums

RESPONDENTS:

Mr and Mrs Schlick
Ms Schlick
Mr Chuvan
Ms H

INDEPENDENT CHILDREN’S LAWYER:

Ms Terrance

FILE NUMBER:

PAF

1482

2006

DATE DELIVERED:

26 November 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

24 November 2008

REPRESENTATION

APPLICANT STEP-FATHER:

Mr Jocums appeared on his own behalf

COUNSEL FOR RESPONDENT MOTHER:

Ms Walker-Munro

SOLICITOR FOR RESPONDENT MOTHER

Robyn McKenzie Solicitor

COUNSEL FOR THE INTERVENERS:

Ms Hogan

SOLICITORS FOR THE INTERVENERS:

Parker Family Law

RESPONDENT MATERNAL

GRANDMOTHER

Ms H appeared on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms J Brasch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The Independent Children’s Lawyer shall file Minutes of Order giving effect to the parties agreement and/or these reasons as the case may be, within 14 days of the date of delivery of these reasons.

IT IS NOTED that publication of this judgment under the pseudonym Jocums & Schlick and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAF 1482 of 2006

MR JOCUMS

Applicant Stepfather

And

MS SCHLICK

Respondent Mother

And

MR CHUVAN

Respondent Father

And

MR AND MRS SCHLICK

Respondent Maternal Grandfather & Step-Grandmother

And

MS H

Respondent Maternal Grandmother

EX-TEMPORTE

REASONS FOR JUDGMENT

The subject child, born in April 2000, has a number of adults in her life who clearly love her and seek to be involved in her care. The difficulty for the child, and for this Court, is that this results in competing applications for parenting orders said by their respective protagonists to be in the child’s best interests.
The child’s mother and father, stepfather, maternal grandmother and maternal grandfather and step-grandmother are all parties to these proceedings and seek parenting orders.
In a comprehensive family report dated 8 August 2008 the family consultant, Ms B, says this:
This is a rather complex matter in that there are a number of adults offering a variety of proposals that in their view is in the best interest of [the child]. All the adults in [the child’s] life have something to offer her. They all have aspects of their life and characteristics that they can share with her as she creates her own life picture and the life story that depicts who [the child] is. As described above, [the child] is an articulate, intelligent, delightful child. She demonstrates resilience and a capacity to embrace the challenges in her life as long as she is afforded honesty and consistency.
I agree, with respect, with Ms B’s assessment that all adults in the child’s life have something to offer her. I also respectfully agree with Ms B’s assessment that the child needs honesty and consistency in the parenting arrangements applicable to her.
At the commencement of the hearing Ms Hogan, counsel for the interveners, had helpfully prepared a document setting out the competing proposals and the component parts of the parenting orders sought by each of the respective parties. That document revealed that some of the differences between the parties were relatively minor in the scheme of things.
Counsel for the Independent Children's Lawyer, Ms Brash, requested time so as to facilitate discussions between the parties with a view to resolving such matters as could be resolved.
Ultimately, alterations were made on that document prepared by Ms Hogan indicating where agreement had been reached. That document with those annotations became Exhibit ICL1 in these proceedings.
It needs to be observed that with a number of parties having competing proposals, all of which are, according to their respective perspectives, in the child’s best interests, it is to the parties' considerable credit that they were able to, for the most part, look beyond those individual perspectives and to reach broad agreement about orders embracing the child’s best interests.
The agreement thus reached was embodied in draft minutes of consent that encompassed the agreement between many of the parties.
There remained, however, two issues for determination by me. Each of those issues, has potential wide-reaching ramifications for the orders otherwise arrived at by consent by the other parties.

THE PARTIES PROPOSALS AND THE ISSUES

In summary, the applicant stepfather, (Mr Jocums), the mother, and the interveners, (the maternal grandfather and step-grandmother) were in agreement about all orders.
The maternal grandmother, Ms H, has consistently maintained a case that the child is at risk of harm from the applicant stepfather. The maternal grandmother has not filed a notice of child abuse or family violence. The father has done so (on 9 January 2007).
The father's concerns are, to one extent or another, embraced by the maternal grandmother. His concerns, as expressed in his Notice of Child Abuse, are that the stepfather has served the child alcohol when she was about six; that she is coached by the stepfather and his mother as to what to say when speaking to the mother and that he had noticed "provocative behaviour patterns" from the child.
The maternal grandmother says that the child is at risk of sexual harm. She is of the view that the stepfather has engaged in "grooming behaviours" with the child with a view, presumably, to engaging in inappropriate sexual behaviour with her.
The maternal grandmother told the family consultant Ms B that:
I look at my daughter (the mother) now and understand that she's the way she is because she has been sexually abused.
I interpose here that the mother suffers, and has suffered for a considerable period of time, from significant mental illness and is currently receiving treatment.
The concerns of the maternal grandmother are set out in some detail in her affidavit of evidence-in-chief at paragraphs 4(1) through 4(10). Her other allegations, in respect of the stepfather, are also dealt with in that affidavit.
The father, Mr Chuvan, seeks orders that the child live with him and spend time with orders that are also different to those otherwise agreed between the other parties.
In summary, then, there are two issues that are left for my determination. First is the father's application that the child live with him, which application is opposed by all other parties in the proceedings. Secondly, the maternal grandmother asks that I determine the issue of whether the stepfather presents an unacceptable risk to the child.

THE GENESIS OF THE FATHER’S POSITION

It is necessary, I think, to say something about the process which led to the hearing of these matters. At the hearing, the father presented a list of proposed orders which became Exhibit F1 in the proceedings.
They were expressed to be "amended final orders sought by the applicant father on 20 November 2008”.
None of the other parties had received these orders prior to the commencement of the proceedings. Ms Hogan objected to their receipt. She referred to previous orders made by me.
This matter first came before me on 31 March 2008. On 17 July 2008 it was ordered that the applicant grandmother and step-grandmother be granted leave to intervene in the proceedings.
The maternal grandmother was granted leave to file an affidavit in the proceedings.
The order permitting intervention was made over the opposition of other parties. I delivered short reasons for judgment on that issue on 17 July 2008. In the orders ultimately agreed to by the parties, the child will live with the interveners.
It will be appreciated that, with so many parties involved in the then prospective proceedings, it was important to establish directions that would see the matter ready to proceed on its allocated days. To that effect, I made orders on 11 August 2008 which included an order that, by 4 pm on Friday, 22 August 2008 each of the parties file a document setting out the orders sought by them.
I also ordered that all of the parties, with the exception of the maternal grandmother, file and serve an affidavit of evidence-in-chief by 4 pm on Friday, 12 September 2008.
The father did not comply with the direction to file a copy of the orders sought by the time and date included in those orders. Moreover, he did not do so at any time prior to the commencement of the hearing.
Furthermore, although the father filed a response on 20 February 2008 and an affidavit on the same day, no further material was filed by him until the questionnaire filed on 3 March 2008. Subsequent to that, a response was filed by him on 31 March 2008. Subsequent to 31 March 2008, the father had, in the intervening eight months or so, filed no further material whatsoever whether in compliance with my order for directions or otherwise.
In those circumstances, Ms Hogan objected to the father presenting to the Court a document setting out further amended orders and also objected to him giving further evidence.
Given the self-representation of the father, and given that the position of the parties had shifted somewhat during the intervening time, in some cases significantly, including subsequent to the receipt of the family report by Ms B on 8 August 2008, I granted leave to the father to rely upon the document earlier described which became Exhibit F1.
I also permitted the father to give oral evidence in support of that application that the child live with him.

THE MATERNAL GRANDMOTHER AND THE ISSUE OF RISK

I was told by both the maternal grandmother, and counsel for the Independent Children's Lawyer who had spoken to her during the break to which I earlier referred, that, if I determined that the stepfather was not an unacceptable risk, then, consequent upon that finding, there was agreement by her with all of the other parties (save for the father), in respect of the consent arrangement for orders providing with whom the child was to live and with whom and when she was to spend time.
Whilst the orders and issues can be simply expressed and whilst pursuant to the provisions of Div.12A of the Act the hearing was conducted in what might be described as a somewhat unconventional manner, including no party except the maternal grandmother seeking to cross-examine any witness, it is necessary for this Court to give proper consideration to the issues for determination within the mandatory statutory framework.
It is important to point out that the minutes of consent earlier referred to occur against a background where Ms B in her family report identified the issues in dispute as follows:
“8As mentioned in my issues assessment, it is my opinion the issues that warrant further attention in regard to the parenting arrangements of [the child] are:
(a)the animosity and lack of communication between the adult parties and its impact on [the child];
(b) [The mother’s] mental health issues;
(c) concerns raised in regard to [the child] being at risk of harm in the care of [the stepfather];
(d) the development and nurturing of her relationship with her father and the maintaining of her relationship with significant other adults in her life.”
It seems to me significant that, within the complexity referred to by

Ms B, and the significant issues identified by her, the parties have been able to reach such agreement as they have with respect to the child’s best interests.
In that regard, all parties, are agreed in their opposition to the father’s application that the child live with him.
Similarly, and importantly, as it seems to me, all other parties, save for the maternal grandmother and the father, are agreed, by reason of the terms of the minutes agreed to by them, that such risk as is perceived by any of them as being presented by the stepfather is met by the terms of the orders proposed and agreed to by them.
The proposed minutes of order provide that the child live with the interveners but spend time with the other significant adults in her life, all of whom, obviously enough, will have the opportunity to interact with, and observe her, on a regular basis.
I have little doubt that they will exercise appropriate vigilance with respect to the child, including in respect of any of the risks asserted in the evidence in these proceedings.
Further, the minutes provide for time with the mother being conditional upon her being well enough and in suitable accommodation. They also provide that, in circumstances where she is unwell, time will be facilitated at the grandparents’ home or by visiting her. Further, the mother is to keep the interveners informed of the name and contact details of her treating psychiatrist and the mother will provide an authority to permit the disclosure of issues directly relevant to the welfare of the child.
The orders also include a non-denigration clause and a restraint on any party giving the child alcohol or allowing the child to participate in, or witness the use of, illegal firearms, potato or lemon guns.
Similarly, the orders provide that all parties will ensure that the child attend to her own personal hygiene while she is in their care and that she is not exposed to any inappropriate sexualisation and that she is provided with her own bed and privacy.

FINDINGS ABOUT BEST INTERESTS

When parents (and others) cannot agree about the post-separation parenting arrangements for their children best interests is the criterion by which the Court arrives at parenting orders that will be imposed by the Court upon the parents and others.
Ultimate findings about best interests rest on a fact-finding exercise performed within the mandatory statutory framework.
In particular, s.60CC bears the heading "How A Court Determines What Is In A Child's Best Interests". The nature of what is required by that section, together with complimentary provisions of the Act, including its Objects and Principles with respect to parenting orders, is central to the Court's role.
Reference to the Act makes it clear, though, that the Court's overriding mandatory function is to determine the orders that best promote the best interests of this child in the circumstances specific to her.
The Court is reminded more than once, (for example, s.60CA, s.65AA), that a determination of those best interests is at the heart of the decision - "the paramount consideration" - when arriving ultimately at parenting orders.
Here the matters required to be taken into account by the Court have all, clearly enough, been taken into account by each of the parties in arriving at the orders that are agreed to.
It seems to me that each of the parties, by reason of the terms of the orders agreed to, have given careful consideration, for example, to the nature of the relationship that the child ought have with each of her parents in the circumstances pertaining to her life now and whether that relationship can be made as meaningful as what those circumstances permit.
Similarly, it seems to me that the orders agreed to by the parties have carefully taken into account many of the considerations required to be taken into account by the Court. Examples are the capacity of parents to parent and the responsibilities towards parenthood exercised by the parents.
It is to be noted that the father's proposal that the child live with him is accompanied by a proposal by him that, should the Court not be persuaded that an order that the child live with him is in her best interests, he will withdraw from participating in her life.
The father said in evidence that he thought it had "become a circus" with so many people competing for time in her life. In response to my question as to how he considered the child might react to that, he thought "It will hurt for a while, but I think with the sort of coaching she gets she'll learn how to deal with it". Slightly later he said in evidence, "I don't know how she'll deal with it." Nevertheless, his position that he would no longer participate in her life remained firm.
Submissions by counsel for both the Independent Children's Lawyer and the interveners and mother all have a similar theme, each of which in my judgment is borne out by the evidence.
They submit that the proposals for the care of the child by the father are vague and uncertain. They point out that the father has moved a number of times whilst in Sydney and his current plans remain vague even now that he has moved to Brisbane, although I note that he says - and I have no reason to doubt - that he has moved to Brisbane primarily for the purpose of being able to see more of the child.
There is very little, if any, evidence before the Court from the father as to what his proposals are with respect to the child’s day-to-day care, where she might be educated, and with whom and where she would live in the short, medium and long term.
There is, for example, an assertion, which I regard as vague, that she might live with him in his accommodation in Brisbane, but might also, end up living with him and his parents at their property.
The uncertainties with respect to the father's proposals, which, in turn, are directly relevant to many of the statutory considerations are, in my view, encapsulated neatly by Ms B in her family report:
“(38)[The father] wants [the child] to live with him and stated that if the Court orders that [the child] lives with him he would move [the child] into [the grandfather’s] house at […] where he's currently living until the end of the year.”
It is noted in that respect that the family report is dated 8 August 2008, that the father has had an opportunity to read what Ms B had to say in that report, but that his proposals at the hearing remain as Ms B describes them in the report as follows:
“This would mean that [the child] would have to change schools until the end of the year and then he and [the child] would move up to his parents' property on the Sunshine Coast where she would begin another new school at the beginning of 2009. [The father] reported that he did not think these changes would be problematic for [the child], claiming that "it would be worth it to get her away from the lies, sexualisation and unhealthy lifestyles".
(39) He informed me that he wants [the mother] to have the best relationship possible with [the child] and that as long as she was well [the mother] could see [the child] as much as possible. He also stated that if [the child] was living with him that [the maternal grandmother] could see [the child] as much as she liked as long as she travelled up to collect her.
(40) [The father] indicated that he does not want [the child] spending time with [the stepfather] and claimed that he has witnessed [the stepfather] behave inappropriately towards [the child] several times in the past and does not believe that [the stepfather] can be trusted to behave appropriately towards [the child] in the future if his time with her is not supervised.”
I interpose here that that specific situation has apparently changed and the current proposal by the father is that the child live with him, at least in the very short term, in his current rental accommodation.
It was clear to me from the father’s evidence that his attitude with respect to the stepfather, and specifically toward the stepfather having time with the child, has not changed. I consider it highly likely that, if the child lived with the father, the stepfather would spend no time with her whatsoever.

In her affidavit material the maternal grandmother refers to her concerns about the father. She says that he has been abusive to her and that they have no ability to communicate or facilitate time.
In light of my other reasons in this matter, it is not necessary for me to make a finding about whether that assertion with respect to abuse is made out or not. I simply observe that, if that is the attitude expressed on oath by the maternal grandmother, then the capacity for the father and the maternal grandmother to negotiate significant and meaningful time between the child and the maternal grandmother, which time I should say I consider to be in the child’s best interests, is likely to be highly problematical at best.
The father himself referred to some difficulties in that relationship as reported to Ms B.:
“36.[The father] further reported that he had tried to "pop around a few times in the afternoon to see [the child] but she ([the maternal grandmother]) always has an excuse as to why [the child] can't see me … she has shouted and been verbally abusive towards me". When I indicated that [the maternal grandmother] had claimed that he is verbally abusive towards her he admitted that he gets frustrated with her and that he does not get on well with her.”
It is apparent that the father, if the child was to live with him, would need to cooperate and liaise with all of the significant adults in the child’s life to whom I have made reference. All of those people clearly love her. All of those people clearly wish to maintain an ongoing regular presence in her life to the extent that her best interests permit.
In my judgment, it is highly unlikely that the father would have either the willingness or capacity to negotiate and facilitate the child spending regular meaningful time with each of the other loved adults in her life to whom I have referred.
I have had regard to the Act's Objects, Principles and Primary Considerations, the latter particularly with respect to the child’s relationship with her father.
The minutes of order otherwise consented to by the parties provide for time with the father sufficient, in my view, for the father to have, in the child’s particular circumstances, a meaningful relationship with her in the event she lives, as otherwise agreed with the interveners.
Sadly for the child, as it seems to me, the father indicates that, in that event, he will not avail himself of that time. Nevertheless, the orders provide for that to occur should he so choose.
The evidence previously outlined highlights a number of matters readily referenced to the statutory considerations which produce, in my judgment, a conclusion that the child’s best interests are met by an order that she live with the interveners and have time and communicate with other loved adults in her life as the minutes of consent otherwise provide.
Should it not be obvious from my previous reasons, I should record that in making reference to the statutory considerations in that respect, I particularly have in mind the number of changes for the child, both geographic and emotional, such a move to her father would entail; the resulting changes in existing emotional attachments for the child; the likely difficulties, as I assess them to be, in maintaining regular meaningful relationships with other loved adults in her life; the vagueness of proposals as a pointer to the responsibilities of parenthood and the lack of stability pregnant, in my view, in the father's proposals.
Equally, those same matters point away from a conclusion that the child’s best interests lie in an order that she lives with her father. For those reasons, I dismiss the application of the father that the child live with him.

PARENTAL RESPONSIBLITY

I turn to consider the issue of parental responsibility. I make it clear, that in my judgment, the statutory presumption of equal shared parental responsibility is rebutted in this case by reference to the child’s best interests.
The child’s mother has been, and remains, significantly psychologically unwell and fragile. I completely agree with Ms B’s assessment that:
“62.It is highly unlikely that [the mother] is likely to be well enough to care for [the child] on a full-time basis any time soon.”
Indeed it is not contended otherwise by those representing the mother.
The father has already indicated an unwillingness to play any meaningful role in the child’s life if, as I have determined should occur, she is to live other than with him.
There are allegations against the stepfather. Some, for example giving the child alcohol he admits. He lives geographically remote from the child. Again I agree with Ms B when she says:
“[The stepfather] is to be congratulated for considering what is in the best interests of [the child] and recognising that she is settled here in Queensland. Hence, he had amended his application to spend time with [the child] two to three weeks during the year ….”
The child will live with the interveners. They will be making most, if not all, of the day-to-day decisions for her, including the overwhelming majority of decisions during the week.
During the course of argument, counsel for the Independent Children's Lawyer made reference to comments about parental responsibility made by me in an earlier decision, Runcorn & Raine (2008) FamCA 837.
Because reference was made to the orders and approach in that case, I repeat here, with appropriate amendments, what I said there about parental responsibility, and in particular sole parental responsibility:
14.If making a parenting order, the court must presume that it is in the best interests of the children for their parents to have “equal shared parental responsibility” of them.
15.The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that a parent has engaged in abuse or violence or where it is in the best interests of the children for that presumption to be rebutted. In the latter case, then, the s 60CC findings as to best interests are again called into use.
16.Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the court orders, each of the father and mother has parental responsibility for each of the children. A parenting order does not derogate from that save as is expressly ordered.
17.But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
18.Not only is that phrase not defined, it might be thought to involve a concept different to that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of co-operation, respect and agreement attend consensual post-separation co-parenting arrangements.
19.In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
20.The Act (s 65DAC) makes it clear that sharing parental responsibility (whether equally or not) in respect of “major long-term issues” is not a passive activity; it requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
21.Carrying out those tasks and obligations, on what might be a regular basis when children are young, carries with it potential significant difficulties, and all the more so when parents are in high conflict and have little or no capacity to either communicate or predominate the true needs of their children over their inter-adult conflict.
22.The difficulties accordingly created, and more particularly the impact of those difficulties upon the children, seem to me to be potentially antithetical to the best interests of children.
23.For reasons and in circumstances which will emerge, the latter situation pertains here.
24.The parties here have little or no effective communication or capacity to co-operate and each brings entirely different personalities or parenting “styles” to any such requirement. And, as I also find, none of those things are likely to change into the foreseeable future.
25.A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for the children, appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in the best interests of the children.
26.Equally, though, an order for “sole parental responsibility” in favour of a party means (as, it seems to me, follows from the statutory definitions) that the other party has no “duties, powers, responsibilities and authority” in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
27.The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
28.There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
29.Thus, as it seems to me, a decision about parental responsibility and, specifically about whether the statutory presumption of equal shared parental responsibility is rebutted by reason of “best interests”, involves the balancing of the considerations just referred to, always bearing in mind that these particular children’s best interests, given their particular circumstances, is the ultimate criterion.
The consent minutes can be seen to incorporate in part, as the submission for the Independent Children's Lawyer suggested, the reasoning used by me in that case. They allocate sole parental responsibility for major long-term issues, as that expression is defined in the Family Law Act, to the interveners, but the minutes require, by their terms, consultation with the mother and father.
In my view, the multiplicity of carers and the fact that two of those carers represent themselves in these proceedings point to a need for greater specificity in orders for parental responsibility than those contained in the minutes.
It seems to me that the following orders embrace the agreement otherwise made between the parties. If so, these orders can be incorporated as consent minutes as part of the minutes of Order which as I will subsequently order be prepared by the Independent Children’s Lawyer.
If agreement is not reached in respect of this aspect of the orders, I make it clear that I consider the orders I am about to outline are, in my judgment, in her best interests. Those orders are these:
(1) That the parties to these proceedings shall each have responsibility for making day-to-day decisions in respect of the care, welfare and development of [the child] during the time that she spends with each of them in accordance with these orders.
(2) The interveners shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 as amended) in respect of [the child], save that they shall prior to making the sole ultimate decision about any such issue:
(a) use their best endeavours to advise the mother and father in writing of the decision intended to be made;
(b) seek the mother and father's written response in relation thereto;
(c) consider by reference to [the child’s] best interests any such response prior to making any such decision;
(d) advise the mother and father in writing as soon as reasonably practicable of their ultimate sole decision.
(3) That all parties to these proceedings shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:
(a) keep the other informed of their residential address and a landline number, a mobile telephone number and, if applicable, an email address, on or at which [the child] can be contacted whilst in the care of the other and forthwith of any changes to each;
(b) keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists, and extracurricular activities which [the child] attends;
(c) authorise any person, institution or body referred to in the previous subparagraph to provide any other party any and all such information in respect to the treatment of [the child] or her activities, as the case may be, as the other parent might reasonably require;
(d) have the children's school provide, or failing that, themselves provide to each other party a copy of each of [the child’s] report cards, together with any other written report issued by the school in respect of her.
It seems to me that those orders encompass the need for stability and predictability referred to by Ms B by providing that the persons who will have the principal responsibility for the child’s day-to-day care will make the ultimate sole decision with respect to major long-term issues and the vast majority of day to day decisions.
The orders also provide, in my view, for a number of loved adults to participate meaningfully in the child’s life. They will have the opportunity to share in her triumphs and disappointments and to receive information about each as she moves through life.
Furthermore, I am conscious of the father's evidence that should, as I have decided, an order be made whereby the child does not live with him that he will withdraw from seeing her by his own choice. The orders provide, to the extent that he is willing to provide what he is required to provide, for him to be kept appraised of the child’s progress.
It will be seen that the orders I have suggested make provision for day-to-day decisions. I am aware of the provisions of s.65DAE of the Act, but to avoid doubt in this particular case where, again, there are a multiplicity of carers I consider the order should also refer to day-to-day decision-making in the manner in which I have just described.

FINDINGS AS TO UNACCEPTABLE RISK

I turn to the issue of risk. As a result of the orders I will otherwise make by consent, it is clear that:
a)the interveners and the mother, stepfather and maternal grandmother will each have a regular, ongoing role in the child’s life, as will the father if he so chooses;
b)each of the significant adults in the child’s life will have access to information about her and her development and progress through life;
c)the maternal grandmother accords to the interveners day-to-day care of the child. I have no doubt in my mind that the maternal grandmother loves the child and cares for her deeply. I cannot imagine that she would accord the day-to-day care of the child to the interveners unless she believed that they would be vigilant in all aspects of her care;
d)The stepfather will see the child alone for one week in July and one week during the end of year school holidays;
e)a number of conditions are contained in the orders that apply to both the mother and to the stepfather.
In submissions made at the end of the hearing the maternal grandmother said words to the effect that the other parties say, by reason of the consent minutes, that there is no risk to the child, she maintains her position.
I pointed out to the maternal grandmother, though, that the orders do not say, nor do they imply, that there is no risk to the child. What the orders say, and what they imply, is that such risk as can be seen as existing to the child as such as is perceived by the parties, is met by the orders taken as a whole.
This is, in my view, an important distinction. Part of the reason for that lies in the nature of assessments of risk undertaken by courts as part of their

day-to-day function.
"Unacceptable risk" is of course an expression (or sometimes said to be a test) which, in this jurisdiction, has been used where allegations of sexual abuse in respect of a child are made. In the context of allegations of sexual abuse the High Court has said in M & M (1985) 106 CLR 69 at 76:
“… Viewed in this setting the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue, which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…”
Further, at the reference just quoted, the High Court, prior to the passing of the Reform Act, pointed out that:
“In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody to access, but because it is prima facie in the child's best interests to maintain the filial relationship with both parents.”
That is, it seems to me, all the more so now, with respect, consequent upon the passing of the Reform Act introducing PartVII of the Act.
The High Court there, of course, made reference to parents specifically. But, in this case, as Ms B points out and as it appears all parties concede, the child has a number of adults seeking to have a significant, loving relationship in her life and, it seems to me, similar considerations apply to all of those parties.
Now, just as when M & M was decided, an allegation of potential risk of harm ought not divert the Court from the central task of assessing the best interests of the child, in which, of course, an assessment of the risk of harm will be an extremely important component.
That the inquiry in the current legislative context remains a broad one with an ultimate focus on best interests is clear from a number of sections within pt.VII, for example, s.65CA and s.60CC(3)(m).
In W & W (Abuse Allegations Unacceptable Risk) (2005) FamCA 892 the Full Court suggested a number of questions that might be asked by a court when assessing risk. The Full Court concluded that discussion by saying:
“This is not a catalogue of the correct questions but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case, but it is essential that the questions be asked.”
In essence, those questions in the context there described were directed to assessing the magnitude of the risk revealed by the evidence in the proceedings.
Writing extracurially (Unacceptable Risk - A Return To Basics) (2006) 20 AJFL 2419) the Honourable John Fogarty AM says this about the notion of risk:
“… The reality is that all courts deal with the issues of "risk" and degrees or risk, however described, in various situations and that concept is increasingly used in legislation. Risk is difficult to define in a way which is not ultimately circular. But it is an inevitable part of life at all its levels. It is inherently risky to breathe, eat, drink, walk, drive, work, invest and play. The world is full of different risks and consequences and everyone is prone to dangers. We confront varying levels of risk everyday. People frequently face potentially dangerous situations. Not many live at home in complete isolation to avoid getting in harm's way. Most people try to avoid what they perceive to be a risk. Some willingly take on high-risk activities. Risk involves two components: the degree of "likelihood" of the happening of an event and the possible consequences (good or bad) if it does. Individuals in their assessment of some risks may focus more on one than the other of these components. But at some point it usually becomes necessary for that person to make a judgment of the risk and whether it can or should be taken. Where the risk relates to a third person to whom one owes a responsibility it is likely in the nature of things that the estimate will be conservative. Risks are relative and usually involve trade-offs. Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing a plane, very much a balancing exercise of facts, experience and intuition of essentially which risk carries the greater detriment. Then there is the common experience of the mother watching her child cross the road to go to school. The risk is seen as greater, although it may not be, because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult.”

I propose, using the former Justice Fogarty's words, to approach the assessment of risk by reference to the two components referred to; that is, the likelihood of the happening of an event and the possible consequences. Secondly, I propose, again as suggested by the above quote, to be conservative in my assessment of risk.
There are two broad categories of risk identified in this case. The first relates to the stepfather giving the child alcohol. That is a matter the subject of admissions by the stepfather, particularly in an interview of him by departmental and police officers conducted in 2007 to which I will make further reference in a moment.
The stepfather gave evidence. He was cross-examined by the maternal grandmother. He said in evidence (completely consistent, in my view, with the evidence given to the police and departmental officers during that interview) that he gave small amounts of alcohol to the child.
It was pointed out to him in that interview by the interviewing officers that this was an irresponsible thing to do. The stepfather agreed. He indicated in the witness box that he recognised it as an irresponsible thing to do. He said that he has since that time matured significantly and it is not the sort of thing that he would do again. I am inclined to believe him.
Furthermore, the orders provide conditions, the potential consequences of breach of which, in my view, are significant. The stepfather is aware of the conditions attached to the orders and of the potential consequences of the breach of those conditions.
The more concerning of the risks that the maternal grandmother refers to is an allegation of sexual abuse. To describe it as such is not quite accurate. The maternal grandmother makes no allegation of sexual abuse per se. Her allegation is that the stepfather has engaged in the "grooming" of the child, presumably with a view to future inappropriate sexual behaviour.
I refer again to the fact that the maternal grandmother’s concerns in this respect are set out in some detail in her affidavit of evidence-in-chief.
During the course of her questioning of the stepfather, and subsequently in address, the maternal grandmother addressed the issue directly. She said that the reservations that she has always had about the stepfather remained. The maternal grandmother indicated that the Department of Community Services in New South Wales were "swamped at that time and they still are unable to deal with complaints - they are all shelved". The maternal grandmother submitted that she believed that the department had in effect shelved the investigation in respect of her complaints and, in any event, "grooming was very difficult to substantiate".
The maternal grandmother points to a number of specific things that have caused her concern and refers specifically, for example, to what she refers to as “provocative dancing” by the child and allegations that the stepfather had showered with her or bathed with her.
The maternal grandmother indicated that her daughters had been sexually abused. I asked her whether it might be said that she was "hypervigilant" toward allegations of sexual abuse. The maternal grandmother said that she believed she was hypervigilant, but went on to indicate that what she meant by that was that her antennae, as it were, were particularly attuned to picking up on sexual behaviour, including the grooming behaviour about which she is specifically concerned.
She said that she was able to pick up, in effect, such grooming behaviour, whereas people less attuned to the potentiality of sexual abuse may not be able to. She said ultimately:
“Nothing will convince me that my finely tuned antenna is wrong in this case”
referring to her perception that the stepfather is a sexual risk, as it were, to the child.
Part of the records of the Department of Community Services were tendered by the Independent Children's Lawyer and became exhibit ICL5 in these proceedings. Those records indicate that there had been 14 reports to the department; one in 2004 and, relevant to the present discussions 13 complaints in the period between 14 November 2006 and the closing of the file by the department on 13 February 2007.
As part of the investigation of those 13 complaints the child was interviewed by departmental officers on 10 January 2007. At that time, the child was almost seven. Those departmental officers conducted an extensive interview with the child, the typed transcript of which extends over some 13 or 14 pages. The transcript of that interview was tendered and became exhibit ICL4 in the proceedings.
A number of statements made by the child are, in my view, worthy of specific reference in these reasons.
Before doing so, however, it is important to point out aspects of Ms B assessment. First, she assessed, the child as being -
“51. [the child] is a delightful young lady with loads of personality and great potential. She exudes confidence and enjoys meeting people and asking lots of questions.”
At paragraph 60 of her report, Ms B says of the child that she is -
“…an articulate, intelligent, delightful child. She demonstrates resilience and a capacity to embrace the challenges in her life …”
Ms B reports the child as saying:
“54. [The child] said that if she could wave the magic wand she would "be with mum. I love spending time with mum". She then said her second choice would be nona ([the maternal grandmother Ms H]). She further stated that she wanted to see [the stepfather] two or three times a year and then threw her arms up in exasperation and stated, "I feel confused - can't decide."…
56. [The child] was observed interacting with all interested adult parties in a relaxed and spontaneous manner. It is apparent that she has a significant relationship with them all. When I observed [the stepfather] and [the child] together on 23 June 2008 they spent a lot of time looking at a list of activities and places to go in preparation of [the child] spending a week in the impending school holidays with [the stepfather]. As mentioned above, [the child] was relaxed and chatted away to [the stepfather] as she busied herself with activities in the room.”
Ms B’s observations have echoes in my impression of the child who presented to interview on 10 January 2007 by the departmental officers as revealed in the transcript.
During the course of the interview the following exchange took place. ([The stepfather] is referred to during the interview as “[R]”. The transcript reveals uses “B” to signify the child and “F” as the departmental worker).
F: Tell me something you like about [R].
B: He helps me all types of things. He helps me with my homework. He sometimes reads me a story.
F: Anything else?
B: Lots of things. I can't think.
F: Tell me something you don't like about [R].
B: I don't have anything I don't like about him.
F: What do you do with [R]?
B: He takes me to […] Park.
F: Where is that?
B: Near a pizza shop.
Later in the interview the child is being asked about a number of activities that she enjoys. She tells the departmental officers:
B: My guinea pig ate a lot. I thought I would call him Nibbles because he eats a lot.
F: So you like going to mum's.
B: I like going to dad's as well.
F: Which dad?
B: [R].
Again, later in the interview, the child is asked specifically about one of the matters of specific concern to the maternal grandmother and, I gather, the father. The exchange between the departmental officers and the child proceeds as follows:
F: What happens in your home when you are getting ready for bed?
B: I get into my PJs.
F: Do you have bath before you get into your PJs?
B: Sometimes.
F: Do you have a favourite toy?
B: Still the trampoline which is at […].
F: Which toys do you play with at bath time?
B: I have two barbie dolls.
F: When you have your bath, what else is there?
B : Just me. In Queensland I had a bath with […], […] and […], my cousins.
F: No-one washes your body?
B: No.
F: Who comes into the bathroom when you're in the bath?
B: I normally wash myself.
F: Who runs your bath?
B: Dad.
F: Who do you shower with?
B: By myself pretty much.
F: Pretty much. Who else has showered with you?
B: Before when I was younger I had showers with mum and dad.
F: ([The child] had finished drawing her happy face) Tell me about your happy face and what makes you feel that way.
As I indicated earlier, the father also voluntarily participated in an interview with departmental officers. That interview took place on 19 January 2007.
Again, departmental officers put matters which the maternal grandmother indicates are of specific concern to her in the context of the broad allegation of risk. (This time “[R]” obviously refers to the stepfather in the transcript).
F: Does [the child] dance?
[R]: If you put music on.
F: How does she look when she is dancing?
[R]: Like a kid having fun. I don't know about the allegations. Some of them are several years old.
F: You are said to have asked her to dance in front of people, then hung her upside down.
[R]: No, I don't remember that. She is a child. She still asks me to throw her up and catch her and twirl her by her hands.
F: How do you communicate with [the child]?
[R]: Well, I talk to her all the time.
F: Have you any special way of talking to her?
[R]: Not necessarily.
F: We've been told that you have a secret language.
[R]: No, what she does when she is upset with her mother she ([the stepfather] demonstrated hand movements like talking).
F: How do you respond to that?
[R]: I tell her that she is her mother and she has to live with it.
F: We have information that following an access visit on 10 December you gave [the child] a bath knowing that she had just been bathed.
[R]: Yes. When she was picked up and dropped off in the same clothes that she was taken in. It didn't look like she had had a bath. You don't give her a bath then put her back in dirty clothes. …
Later in the interview the issue of giving the child alcohol was addressed. As I indicated earlier, the stepfather made an admission about giving alcohol to the child.
F: Have you ever given [the child] alcohol?
[R]: Tiny little drinks now and then, have since her mother and I were together. A dash of Bailey's, tiny bits of Ouzo and Coke, majority Coke. Since the orders she has had no alcohol. I make her a non-alcoholic Ouzo with essence.
F: The black jelly bean drinks?
[R]: Ouzo, dad jelly bean drink; sugar, water and essence.
F: Giving alcohol to a child is not safe. Their livers cannot metabolise it, nor is it legal.
[R]: She hasn't had any for two months. It wasn't every day, just every one or two months.
F: We've been told that you allowed [the child] to drink a shot of Kahlua. Why would they say that?
[R]: Because he has issues now, because he's going to Fiji.
F: It was you that encouraged him to take her.
[R]: No, I have a text message from him.
The last reference is to the father who, at various times, has also made allegations against the stepfather, similar in many respects to the assertions made by the maternal grandmother.
The maternal grandmother pointed out during the course of her submissions that the departmental records make reference to there being a "moderate risk" presented by the stepfather. The extract which became Exhibit ICL5 does, indeed, make reference to that matter. The full quotation is:
“The other allegations that have been levelled against [the stepfather], although remain unsubstantiated, they raise concerns for the department and risk of harm continuing is measured as moderate.”
However, that comment needs, in my view, to be seen in the context of the whole of the document that became exhibit ICL5. Importantly, that document refers to a process of assessment that included the interviews with the child and the stepfather, to which I have already made reference, and also, for example, a reference by the department to Dr D who is a psychologist.
The departmental records reveal that the child was referred to Dr D following the allegation of risk of sexual harm. Dr D advised that in his opinion -
“…it is very likely that no abuse has occurred. However, it is almost impossible to prove beyond a doubt that a child has not been abused.”
It is, of course, also very difficult to prove, to an appropriate degree of satisfaction, that a child has not been abused.
The overall assessment by the department includes reference to the opinion of the psychologist just referred to that in his opinion it is very likely that no abuse has occurred.
Moreover, the ultimate conclusion reached by the department ought be seen in the context of a number of differing forms of potential harm being referred to the department for assessment. As I indicated, there were 13 reports in the approximate three-month period between 14 November 2006 and 13 February 2007. It needs to be observed that it is during this period that some of the present parties were in high conflict with respect to the child’s potential residential arrangements.
In that respect the departmental records reveal:
“[The child] became known to the department on 21/3/2004 with a report raising concerns regarding [the stepfather] grooming [the child]. The next report was received on 14 November 2006 with information that [the mother] had threatened to put herself and [the child] in a car and crash the car into a tree. [The mother] had been admitted to hospital following an overdose. Following that report, the department received a further 16 reports regarding grooming behaviour, being given alcohol, using a lemon gun, handling firecrackers and an ongoing custody dispute.”
Under the heading "Severity of Harm/Risk of Harm For The Children/Young Persons" the records reveal:
“[The stepfather] has admitted to giving [the child] small amounts of alcohol, which given her age and development have exposed her to physical harm.
Other allegations that have been made are in relation to [the stepfather] grooming [the child], allowing her to play with an illegal lemon gun and handle firecrackers. None of these allegations can be substantiated.”
Significant, in light of the concern expressed by the maternal grandmother that the departmental records revealed that a risk of harm was moderate, is the ultimate summary provided in that document.
Under the heading "Judgments and Decisions for [the child] April 2000" under 13 separate subheadings the document records as follows:
1 [The child] has been assessed as being safe in the current circumstances in the immediate assessment period
2 Assessed issues. Alcohol use by a child or young person. Risk of sexual harm/injury. Risk of physical harm/injury.
3 Protective factors are adequate for future safety.
4 Protective action by DOCS can be ceased
5 Harm Consequences : Concerning
6 Harm Probability - Unlikely
7 Risk of harm to [the child] has been substantiated
I interpose, that the last reference is to the earlier harm identified in the document as being the stepfather giving her alcohol.
8 Future risk level : medium
9 A person associated with causing risk has been identified
10 A person causing harm has not been identified
11 No other persons causing harm have been identified
12 [The child] is not in need of care and protection
13 Legal action has or will be taken in this matter:- no legal action taken
It seems to me that, read as a whole, the document, whilst making reference to “moderate” or “medium” risk in the manner described by the maternal grandmother, nevertheless contains other information which can be used by the Court in arriving at an assessment of risk according to the relevant test. In particular, I note the entry that the probability of harm occurring is assessed as "unlikely".
I have earlier made reference to various passages from Ms B’s report with respect to this issue. I should complete those references by noting that at paragraph 75 of the report Ms B recommends ultimately in respect of the stepfather:
“It is further recommended that unless further information comes to light that informs the Court of any unacceptable risk to [the child], that [the stepfather] spend one week with [the child] during one of the gazetted Queensland school holidays during the calendar year in the Brisbane area and that [the child] travel to New South Wales and spend two weeks with [the stepfather] during the gazetted Christmas holidays. [The stepfather] is to give six weeks' notice to [the child’s] primary carer in regard to his intention to spend time with [the child].”
It seems to me that, adopting the wording of Ms B, no further information has come to light that informs the Court of any unacceptable risk to the child. Any such information was available to Ms B at the time that she did the report.
As I indicated earlier, I had the opportunity to observe the stepfather briefly in the witness box. There can be little doubt that giving a child of this child’s then age alcohol is, in my view at least, an act of parental irresponsibility. It does not do the stepfather any significant credit.
The stepfather, though, recognises, as it seems to me, that fact. He says in the witness box that he has matured significantly since that time. I am inclined to believe him. Indeed, when the allegations made by the maternal grandmother against him were put to him by her in the witness box, it seemed to me that his responses had a ring of truth about them.
I also had the opportunity to observe the maternal grandmother. Although she was not required for cross-examination by any party, I have had, during the course of these less adversarial proceedings, an opportunity to observe the maternal grandmother whilst she has conducted her own case. She has done so, if I may say so respectfully, well. I have absolutely no doubt that the maternal grandmother loves the child deeply. I equally have no doubt whatsoever that the maternal grandmother cares deeply about the child and about any potential harm to her.
I have already referred to the statement by the maternal grandmother in response to a question from me about hypervigilance. The maternal grandmother accepted that she was hypervigilant and saw it as giving her the opportunity to be aware of sexually grooming behaviour that others might not be aware of. She did not accept an alternative conclusion: that it might make her see the potential for sexual abuse when, in fact, there was none.
It seems to me, though, that her hyper vigilance and her entrenched, fixed beliefs about the stepfather are likely to affect her interpretation of behaviours witnessed by her and statements made by the child to her.
Indeed, during the course of the hearing the maternal grandmother gave as an example of concerning behaviour what she described as "provocative dancing" by the chld. As I said to her, "provocative" might mean different things to different people and, although she was the only person who saw that particular episode of dancing, she might perceive the dancing as provocative, whereas another person - with different life experiences to her might not see it in the same way.
Interestingly, in that respect, the specific topic of dancing was put to the stepfather by the departmental officers during the course of the interview with him
F: We also have information regarding [the child] dancing provocatively.
[R]: I don't know about that allegation, how it originated. [The mother] and [the child] used to watch TV. The Simpsons was my biggest issue. Bart gyrating his bottom or Futurama. They are not appropriate for a child.
The stepfather gave a similar sort of response to the maternal grandmother when in the witness box. In effect, although not using these precise words, the stepfather said that the child was just as likely to be mimicking what she had seen Bart Simpson doing on the television as engaging in dancing that might be described by an adult as “provocative” with sexual overtones.

I should also add that in that interview, he denied washing the child between the legs. He also said he stood outside the bathroom when she showered. These answers are, to my mind, consistent with the picture painted by the child herself during her interviews with the Department.
It seems to me, that dancing of a particular type by a young child is open to differing interpretations as are descriptions of it. It seems to me highly likely that a woman who has seen both of her children sexually abused, seen the horrific ramifications of that abuse and who herself admits to hypervigilance is likely to be prone to putting an interpretation on dancing as provocative in a sexual sense that others may not attach to it.
I am struck by the consistency in the statements made by both the stepfather and the child when asked similar questions about similar sorts of events by the departmental officers. The answers of each of them were to the effect that there was no untoward behaviour perpetrated by the stepfather on the child.
In the last 18 months to two years the child has had a number of adults engaged in litigation about her. Each of them is concerned about her and each of them has expressed different specific concerns about her.
Each of them, in effect, gives a similar impression of the child in their evidence to that which has been given by Ms B; that is, that the child is a bubbly, highly articulate, highly intelligent child.
During the time that these adults have been concerned in her life since the departmental investigation and since the interviews of the child and the stepfather (where there were specific accusations made of sexual grooming behaviour) there has been no suggestion by anyone of anything that the child has said that would indicate any concerns about sexually inappropriate behaviour being perpetrated towards her.
In my view, the evidence in this case falls well short of that which would be required to satisfy me that the child is at an unacceptable risk of sexual harm or being exposed to any form of sexual harm, including, specifically, “grooming” by the stepfather.
In my judgment, any risks that might be said to arise from the stepfather’s past behaviour could not be described as presenting an unacceptable risk to her in the context of the orders mooted in this case and in light of the other factors to which I have earlier made reference.
Moreover, it seems to me that any such risk to the child as might be perceived by the parties by the stepfather from his past behaviour is more than adequately met by the conditions and other provisions of the orders otherwise agreed to between the parties.
Accordingly, I do not find that the child is currently at an unacceptable risk from the stepfather either by way of sexually grooming behaviour or in any other form.
For those reasons, I will:
(a)make orders dismissing the father’s application that the child live with him;
(b)Having found that the child is not at an unacceptable risk of harm, I will make orders in accordance with the Minutes agreed to.
In light of that finding, those orders are agreed to also by the maternal grandmother. If the order for time with the stepfather is not agreed, I indicate that I will make such an order in accordance with the Minutes.
I will make the order for parental responsibility earlier outlined. If the parties are agreeable to the form of order outlined by me, I will make it by consent.
At the end of the hearing, an issue was raised as to changeover point and whether the child should be permitted to fly to the stepfather as an unaccompanied minor.
In light of all of the matters that I have referred to, including, significant conflict between a number of people whom the child clearly loves and wants to see, it seems to me what the child needs most now is to experience the love and care of all of those people who want to have a significant involvement in her life, but for that to occur in a situation which provides for her the greatest degree of predictability and stability with the least amount of upset as can be accommodated by orders in the difficult circumstances of this case.
Bearing that in mind, the issue as to changeovers now joined between the interveners on the one part and the stepfather on the other, should, it seems to me, be resolved by ordering that changeover occur at the airport and that for the Christmas 2008/9 and July 2009 school holidays the child not fly as an unaccompanied minor, but thereafter she does so.
For reasons given at an earlier continuation hearing, I will order that a certificate pursuant to s128 of the Evidence Act issue to the maternal stepmother in respect of evidence given in her affidavit of evidence in chief.
Finally, evidence from the father indicated the possibility of dissemination by him of material relating to these proceedings.
Despite being advised that counsel for the Independent Children’s Lawyer has advised the father of the provisions of s121 of the Family Act, I will order that the father be restrained from publishing, orally or otherwise, any account of these proceedings save for the purposes of obtaining legal advice and that, specifically, he be restrained from doing so to the child in any form including showing any documents forming part of, or related to, these proceedings.
I will direct that the Independent Children’s Lawyer file a Minute of Order giving effect to the parties’ agreement and/or these reasons as the case may be within 14 days of the date of delivery of these reasons.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 4 December 2008

[2008] FamCA 1066

26 November 2008

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