Joe and Cannon

FAMILY COURT OF AUSTRALIA

JOE & CANNON

[2009] FamCA 260

FAMILY LAW – CHILDREN – parental responsibility –unacceptable risk – with whom and child spends time and communicates

Family Law Act 1975 (Cth) ss 60 B(1) and (2),60CC, 61C, 61DA, 65DAC

G and C [2006] FamCA 994
M and M (1988) FLC 91-979
Briginshaw v Briginshaw (1938) 60 CLR 336
S and R (1999) FLC 92-834
Johnson and Page (2007) FLC 93-344
B and B (1993) FLC 92-357
Napier and Hepburn (2006) FLC 93-303
McCoy v Wessex [2007] FamCA 489
Potter v Potter (2007) FLC 93-326

APPLICANT:

Ms Joe

RESPONDENT:

Mr Cannon

INDEPENDENT CHILDREN’S LAWYER:

Ms Koorey

FILE NUMBER:

SYC

1312

2007

DATE DELIVERED:

22 January 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATES:

12, 13, 14, 15 &
16 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wearne

SOLICITOR FOR THE APPLICANT:

Legal Aid Commission

COUNSEL FOR THE RESPONDENT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gillies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Reid Family Lawyers

Orders

All previous parenting orders regarding … born … October 1999 (“the child”) are discharged.
Ms Joe (“the mother”) have sole parental responsibility for the child.
The mother may apply for an Australian passport for the child without obtaining the consent of the child’s father Mr Cannon (“the father”), provided the passport is applied for within six (6) months from the date of these orders.
A consequential order the mother shall do all acts and sign all documents to cause the passport for the child to be delivered to a Registrar of the Family Court of Australia at Sydney and only be released on the earlier of:-
(a) an order of a court exercising jurisdiction under the Family Law Act;
(b) the child attaining the age of thirteen (13) years.
The mother is to provide evidence to the Independent Children’s Lawyer within seven (7) months from the date of these orders that the passport has been obtained and it is held by a Registrar of this Court.
The child live with the mother.
The child shall spend time with the father as follows:-
(a)in the NSW gazetted April 2009 school holiday period for a period of one (1) hour;
(b)in the NSW gazetted December 2009/January 2010 school holiday period for a period of one (1) hour;
(c)in the NSW gazetted March/April 2010 school holiday period for a period of two (2) hours;
(d)in the NSW gazetted December 2010/January 2011 school holiday period for a period of two (2) hours;
(e)in the NSW gazetted March/April 2011 and 2012 school holiday periods for a period of three (3) hours;
(f)in the NSW gazetted December 2011/January 2012 and December 2012/January 2013 school holiday periods for a period of three (3) hours.
The time the child spends with the father pursuant to these orders be supervised and facilitated at:-
(a)the W Family Centre, with such time to be supervised by a contact worker either from W Family Centre or arranged by that Centre; or
(b)in the event the W Family Centre is unavailable or unwilling to facilitate the child’s supervised time with the father then the time shall be at the Central West Contact Service or such other Contact Centre as is reasonably nominated by the mother;
(c)both parties will follow all reasonable directions from any contact supervisors in relation to the conduct of the child’s supervised time with the father;
(d)the father shall be entitled to bring his wife, Mrs Cannon (“the stepmother”) with him to such times provided she undertakes to accept all reasonable directions from the contact supervisors.
Both the mother and father are restrained from:-
(a)allowing the child to spend unsupervised time with the father before she reaches her thirteenth (13) birthday;
(b)allowing the child to spend any overnight time with the father prior to her eighteenth (18) birthday;
(c)allowing the child to spend time or communicate with the father, prior to her thirteenth (13) birthday, other than in accordance with these orders.
The mother will do all things to facilitate the child’s continuing attendance at Protective Behaviours and Therapeutic Counselling through W Family Centre or other counselling facilities in the weeks leading up to the child’s visits. Such counselling to continue until such time as the child reaches the age of fourteen (14) or such alternate time as is recommended by a therapy provider.
The mother will continue to engage the services of W Family Centre to provide support for both her and the child until such time as W Family Centre indicate they are no longer able to assist them.
In the event that W Family Centre are unable to assist the mother and the child, the mother shall seek information in relation to other services that may be able to supply family support, as recommended by W Family Centre, and shall engage those services. This is to include individual counselling for the child.
BY CONSENT the mother is restrained from allowing the child or causing the child to be left in the unsupervised care of the paternal family and the mother shall remain with the child at all times that she is in the presence of a member of the paternal family.
The father is permitted to send one gift to the child at Christmas and the child’s birthday each year. The mother shall do all things to pass on the gift to the child.
The father will communicate with the child:-
(a)by letter and cards on no more than six (6) occasions per year. The mother shall open those letters and cards and pass them onto the child, if the content is appropriate, at the first possible opportunity. If the mother considers a letter or card inappropriate she may make a copy but must return the letter or card to the father;
(b)until the child’s thirteenth (13) birthday, by telephone once per month at times and durations arranged through W Family Centre and supervised by W Family Centre and if they are unable or unwilling to do so, the Central West Contact Service or some other independent supervisor reasonably nominated by the mother.
(c)The mother will do all things to ensure the child’s availability to receive telephone calls from the father in accordance with these orders.
The mother will do all acts and things to encourage and facilitate the child writing to the father, if she expresses a wish to do so.
Within twenty one (21) days of the making of these orders the mother shall:-
(a)secure a postal address and provide details of same in writing to the father and the Independent Children’s Lawyer;
(b)continuously maintain a postal address to which the father can write to the child (this can include W Family Centre);
(c)advise the father of any change in postal address within a reasonable time after such change.
(d)The father will keep the mother advised at all times of a postal address and contact telephone number through which she can communicate with him in relation to the child or through which the child can correspond with him.
Neither party will denigrate the other party, members of the other parties family or household in the presence or hearing of the child and will immediately remove the child from the presence or hearing of any third person who does so.
The father will be responsible for the costs associated with the supervision of his time and communication with the child.
The mother will do all acts and things to ensure that the child spends regular time and communicates by telephone or otherwise with the F family (with whom she has previously lived). It is noted by the Court that the child will spend holiday time with the F family if that is available to her, such holiday time to be up to two (2) weeks per annum at the F family’s home if they are willing.
The Independent Children’s Lawyer is to forward a copy of these orders to the F Family.
The mother is restrained from removing the child from Australia until the passing of the child’s thirteen (13) birthday, or as otherwise ordered by a court exercising jurisdiction under the Family Law Act. After that time the mother is given leave to take the child on holidays to the Philippines during school holiday periods, subject to:-
(a)the mother giving at least six (6) weeks notice of the proposed holiday to the father and to the F Family;
(b)the mother providing to the father and to the child details of the return ticket which shall be non-cancellable and have a clear return date;
(c)the Independent Children’s Lawyer informing the child, within twenty eight (28) days from the date of these orders, of her right to return to Australia and the availability and the ticket for that purpose.
The mother shall notify the father of any significant medical or health issues in relation to the child as soon as is reasonably practicable.
Until the child turns 13 years of age the mother shall provide to the father a copy of the child’s school reports. The mother is authorised to delete or remove any material that identifies the child’s school from the school report before it is forwarded to the father.
The Marshall of the Family Court and the Federal Police are requested to place the child’s name on the PACE system at all points of arrival and departure in the Commonwealth of Australia, until such time as the child attains the age of 13 years.
Until the child turns thirteen (13) years of age the mother shall provide to the father, no less than 2 times per year, a photograph of the child.
After the child turns thirteen (13) the father is authorised to obtain duplicate copies of school reports and school photograph order forms and the Mother is required to notify the Father in writing of details of the school the child attends at all times, after that her 13^th birthday.
The father is restrained from attending the child’s home or school at any time, except he may attend the school at the written invitation of the child, once she reaches the age of thirteen (13), for school functions or events.
Within fourteen (14) days of the date of these orders the Independent Children’s Lawyer meet with the child and inform her of the orders and such of the reasons, as the Independent Children’s Lawyer sees appropriate, AND leave is given to the Independent Children’s Lawyer to speak to the single expert, Associate Professor Q to determine what parts of the reasons the Independent Children’s Lawyer ought to provide (orally) to the child
Pursuant to s65D(2) of the Family Law Act any time that the father spends with the child or any communication between the father and the child pursuant to these orders may only be varied by subsequent order of a Court exercising jurisdiction under the Family Law Act and not by a parenting plan.
The Independent Children’s Lawyer shall forward to the Department of Community Services NSW the following:-
(a)       a copy of this order;
(b)       a copy of the affidavits and reports of Associate Professor Q;
(c)       a copy of the bundle of documents, Exhibit ICL1;
(d)       a copy of these reasons, when published;
(e)a letter noting that this court request that the Department take an active interest in this child and that they maintain an open file on her for the circumstances set out in my judgment, the judgment of the Queensland State Magistrate and the other material provided to them.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The appointment of the Independent Children’s Lawyer be extended for a period of seven (7) months following the date of these orders.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and/or Advocate to attend.

IT IS NOTED Publication of this judgement under the pseudonym Joe and Cannon

is approved pursuant to s 121(9)(g) of the Family Law Act 1975(Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC1312 of 2007

MS JOE

Applicant

And

MR CANNON

Respondent

REASONS FOR JUDGMENT

These are proceedings between Mr Cannon (“the father”) and his former wife, Ms Joe (“the mother”) in relation to parenting arrangements for their daughter (“the child”). When these reasons are published, I intend to provide a pseudonym for the names of the parties, and in particular the child. The child is now aged 8 and lives with her mother. The father is aged 38, and is in relatively good health, except for some injuries he sustained in a motorcycle accident last year, from which I understand he is recovering. The mother is aged 32 years and is in good health.
The father was unrepresented during the course of this hearing, which ran for four days last week and submissions were made Tuesday and Wednesday of this week. There was an Independent Children's Lawyer appointed who made submissions and was involved in the trial, and the mother was represented by an advocate from Legal Aid.
In these reasons, I do not intend, nor is it appropriate for me, to recite all of the facts. However, I have had regard to all of the material which has been placed before me. In these reasons, I include the exchanges which took place between myself and the parties' representatives and the father during submissions and during the trial. In these reasons, I include and generally adopt the oral and written submissions provided by the Independent Children's Lawyer
The parties married in the Philippines in 1996, and a month after their marriage it seems the father returned to Australia and the mother came to Australia in August 1997. The parties lived together in Australia until about November 2001, when the mother went to Sydney with a friend but without the child, and the parties separated in December 2001, with the mother leaving the child in the care of the father. The child, having been born in October 1999, was just over two years old at that time.
The mother obtained an apprehended violence order against the father in January 2002, and the child remained in the care of the father until 18 April about 2004. Consent orders were made in the Local Court for parenting in December 2003, which provided that the child live with the father, spend time with the mother and that there be joint parental responsibility. In December 2003, there was a notification to the Department of Child Safety of concerns about the mother removing the child to the Philippines. Apparently no further investigation or assessment was made at that time. On 18 April 2004, the father made a report to the police after a babysitter refused to return the child. The child and the babysitter were taken to the police station and the police contacted child welfare authorities. On 19 April 2004, the child made numerous disclosures about abuse and an order was made under the Child Protection Act placing the child in foster care where she remained essentially until about July 2006, but with different families, the last family being the F family.
Between April 2004 and June 2004, the mother went to Queensland to spend time with the child and had regular contact with her, including telephone contact. This continued, at least the telephone contact, until July 2006. Reports were prepared and on 23 December 2005, a child protection order was made by the Children's Court placing the child in the custody under care orders for some two years. At that time, a decision was made by the Children's Court Magistrate Taylor, and I include his finding in my reasons. I do not intend to read them out in full at this stage.
The Magistrate was satisfied that there was an unacceptable risk of harm to the child if the child was left in the care of her father. The Magistrate was satisfied that the father was at least compromised by his own evidence, and his evidence added further substance to the child’s assertion. He went on to find that:-
The father cannot be regarded as a parent able to protect [the child] within the foreseeable future.
The determination of the child being at unacceptable risk by the parties was a finding which the parties did not challenge in this court and, in fact, accepted those findings but not, I hasten to add, the father who does not accept the factual assertions and does not accept the complaints made by him in relation to his care of the child.
The issues for this court were, firstly, whether there ought to be parenting responsibility solely given to the mother or whether there ought to be equal shared parental responsibility, as sought by the father. Secondly, whether the mother should be permitted to remove the child from Australia to the Philippines and, if so, when. In that regard, the father said he did not object to the child travelling for holidays to the Philippines after her 12th birthday. The mother wants that availability from now, having regard to the fact that the child turns 10 in October this year. During the course of the hearing, I raised whether that time ought to be extended to 13 years, bearing in mind the present schooling arrangements for the child.
A further issue is, given the finding of unacceptable risk to the child, to consider what has happened since that time, consider the nature of the relationship between the child, her father, her stepmother, the father's present wife, and, to a limited degree, the father's extended family, whether the child should spend time with the father and his family, and if so, whether the amount of that time should be supervised and, if so, for how long and by whom, and the appropriate level and nature of communication between the child and the father.
There was an issue as to the capacity of each of the parents to meet the child’s physical and psychological needs, and I interpose here that the father consented to the child living with the mother subject to his application for orders. That was a course which the Independent Children's Lawyer adopted, and, as such, the order that the child live with the mother will be a consent order. That does not mean that I do not have concerns about the mother's capacity to parent. In fact, I have significant concerns, and I adopt the submission of the Independent Children's Lawyer that she needs all the help she can get to manage the parenting of the child. So, if there seems to be a focus on the father in the course of these proceedings, it is because of the structure of the proceedings, and the real issue is, essentially, how much time he spends with the child rather than whether the child should be living with the mother.
A further issue is the impact on the mother's parenting capacity in the event orders are made for the child to spend time with the father and the impact of the father's relationship with the child if the court determines that time is spent between he and the child should be supervised indefinitely.
The mother's position is that she should have sole parental responsibility, that the child should spend supervised time twice a year for one, two or three hours, depending on which year it is, for the indefinite future, and that time ought to be supervised, that there should be limited telephone communication, limited communication in a written form and limited communication through presents. The father conceded, as I have said earlier, that the child should live with the mother. He said that there ought to be equal shared parental responsibility, which is different to the mother who says she should have sole parental responsibility, and that he should spend time with the child on a limited basis at first on a fortnightly basis, then developing into much more time to enable, what he says, is a relationship to develop between the father and the child. It is not an issue at the present time that the relationship between the child and the father is almost non‑existent as a consequence of the removal of the child from his care in 2004 when the child was about four and a half years of age.

The parties have an agreed chronology, which is included in these reasons. The mother gave evidence in accordance with her affidavit filed 5 August 2008 and tendered are a copy of her citizenship certificate showing she became a citizen of Australia in October 2005. She said that she wanted to buy property in the Philippines, but as an Australian citizen, she no longer had citizenship in the Philippines, although this evidence was somewhat unclear in the later part of her evidence. The mother produced a photograph of some shorts and produced a pair of white shorts and said they were inappropriate clothing for a five year old child. She gave evidence that the child was improving at school, except in mathematics, and that she'd returned some of the presents the father had sent the child for her ninth birthday. It was not in issue that the father has not sent letters or cards to the child for Christmas this year.
In her evidence, the mother complained about the inappropriate shorts, the white shorts which were exhibit 2, and the photograph of the shorts were exhibit 3. They were, in the mother's view, indicative of the father's lack of insight and, presumably, sexualisation of the child. If there had been a positive finding of the Magistrates Court and if, in fact, the child had been abused by the father, as asserted, that would be an entirely justifiable position on the part of the mother. On the other hand, if the findings were that the father did not act in an inappropriate way, then the difference in the shorts would simply reflect the difference in the attitude to clothing. I give no weight to the impact of the evidence of those shorts. Bearing in mind I do not intend, nor am I asked, to make a positive or negative finding in either way.
The father, being self‑represented, had difficulty cross‑examining the mother and seemed, sadly, to be interested in old matters which were not relevant to this determination. The father was given time to consider his questioning and time to inspect documents on subpoena. During the course of the cross examination, the mother said she could not think of any reason why there ought not to be telephone time between the father and the child and, in fact, being properly advised, she conceded that later in the trial.
The mother's evidence was that the child was concerned about the father and wanted her uniform cut out of the photograph. This explanation was, she said, as a result of the child not wanting the father to know which school the child attended. Unfortunately in this case, the child's desire or the mother's desire to conceal the school from the father was not successful, and the name of the school was provided to the father through the single expert, Associate Professor Q. Unfortunately, the father adopted an unsatisfactory way of informing the mother of this circumstance by annexing some material from the school's website to an affidavit rather than simply informing her or simply informing Professor Q of that disclosure. It, in itself, is indicative of some lack of insight on the part of the father. However, the mother has known that the father was aware of the child's school for a period of over 12 months, and yet has not done much about that. The mother in this regard used the excuse of the father for removing the child from an address and presumably from the school. I have some significant concerns about this evidence.
If I have not done so by the way, in these reasons any statement of fact made by me is to be regarded as a finding of fact, unless in the context in which it is given that is not the case.
I am concerned about the fragile nature of the mother's parenting of this child and the poor circumstances in which she finds herself. I was concerned, and expressed these during the trial, as to the mother's desire to take the child to the Philippines for holidays, particularly at this time. I intend to allow the mother to take the child to the Philippines, but only after the child's thirteenth birthday and only in circumstances where the child is informed of these orders, and I will make an order that the Independent Children's Lawyer do so, and that there is available for the child at the time of any such trip, a return ticket which is not cancellable, so that the child knows that if she wishes to return to Australia she can do so.
I am concerned on the evidence before me that the mother is not encouraging the child to have a relationship with the father. She does some things, but it is, of its nature, fragile. The mother asserted, and it is disputed, that the relationship between her and the father was such that she was the subject of significant physical, emotional and sexual abuse. The mother claimed that the child had been subjected by the father to some sexualised behaviour. That is set out in her affidavit. Yet the mother, for whatever reasons ‑ I have some concerns about her reasons ‑ left this child in the care with somebody who she regarded as being totally unsuitable for the care of the child for a period of years. At the same time, she consented to orders that this person be the primary carer of this child.
There is no issue that the mother leads a very tough financial life, living on Centrelink benefits and paying high rent. The mother owes a considerable amount of money, and in her present circumstances, she is unlikely to be able to repay that money. I add this as a factor in relation to my concerns about allowing the child to leave Australia before she turns 13.
One of the matters which I will address later in these reasons under the s 60CC factors will be the father's support of the child, to which I am extraordinarily critical of him. He has a capacity to pay child support but chose not to do so. He provided to the child, but in a way which was self‑centred, frankly, and not child‑centred.
In terms of the mother's evidence on the Philippines, she said in terms of buying the land in the Philippines that that was not really her intent, but it is significant that the mother has few ties in Sydney, some ties in Brisbane, but her close ties are in the Philippines.
The father was critical of the mother in terms of the birthday presents given to her in October 2008. I accept the evidence of Ms D, given that the child did not want most of the presents and they were not age appropriate. The father needed to think through these presents and bear in mind, the history of going overboard in that regard. There are concerns that he does not think through those issues.
The mother conceded in 2006 that an agreement was entered into whereby the child would spend some time with the father. The mother conceded that she collected significant funds from the father in 2003. Her explanation was that she was scared and afraid and, as such, she did not pursue the reunification of the child. That may well be the case, but it does not explain why the child was put into foster care in 2004 and was not returned to her care until 2006.
There is evidence that the child communicated with the father requesting presents from him, which were provided. In that regard, I note the cards and letters in s 23 annexed to the father's affidavit. The mother had joint counselling with the child which has gone on since reunification in 2006. The mother accepts the father should know about the operations and provided school reports. Initially the school was not identified and the father was not kept advised as to major changes in the child's life.
It is of concern to me that the mother has not had the opportunity of taking the child to visit the paternal aunt and paternal grandmother in Brisbane but has not taken up that opportunity. During the time the child was in foster care, there were a number of times the mother did not contact the child when she was entitled to do so and did not visit the child when a number of offers were made to her. The mother appears not to have encouraged or continued that relationship or not to have overly encouraged the relationship between the child and the F family, although giving evidence during the course of this trial, she says that that is something she will try and achieve into the future.
The mother says that if more counselling is recommended, then she will comply with that order. There had been two inadvertent meetings between the child and the father since the child was placed in foster care. The evidence of the mother was that she significantly reacted and was unsettled, which upset and unsettled the child. The evidence is that the mother has to be treated with great care. At some levels, her evidence seems to reflect what she thinks ought to be said rather than what her clear memory is of it.
Ms D gave evidence. She was an employee of the W Family Centre, a non‑government specialist tertiary child protection service funded by the New South Wales Department of Community Services, whose primary role is to work with children aged 0 to 9 and which children are deemed at risk from their families. Ms D works in the trauma model of understanding the effects of violence and abuse. The evidence of Ms D was contained in her affidavit of 5 August 2008 and the attached report. There was also part of a report that she did with Mr M in August 2006, and another report of 30 October 2006. The only part of the report of 10 August 2006 with Mr M which related to Ms D was on page 31, relating to the child and her contact with W Family Centre. Ms D’s evidence was not seriously challenged. The father is clearly unhappy with the centre because they do things with which he does not agree. I am satisfied, however, that the focus is independent. As it must be seen, their approach is on a subjective not objective basis. Both the child and the mother have had extensive counselling at W Family Centre. The child has expressed no desire to see her father, and at present does not mention him. She rejected the presents sent for her ninth birthday. There is evidence, albeit from the mother and ought to be treated with some care, that the child had disturbances after receiving a letter from her father. The first letter which was sent ‑ I will deal with that a bit later.
As I have said earlier, the child has no present relationship with her father and the father's present partner and has had virtually no time with him since 2004. The centre will continue to assist the child into the future. Evidence was provided in a late submission to that end. That, in my view, is of great assistance for the child and ought to be encouraged. The centre has encouraged the child to write to her father, and the child has, from time to time, expressed no interest in doing so. Ms D, who has extensively counselled the child, has not heard her say anything positive about the father. If she is to see the father, she will need some sort of counselling in relation to having appropriate protective behaviours and being aware of grooming. It is likely her involvement with W Centre will continue after the child’s 10th birthday.
Ms L, a caseworker from the Department of Child Safety Queensland gave evidence in accordance with her affidavit. It is significant to note that she agreed with the comment contained in annexure E at page 13 of an assessment where it says:-
The father has resisted engaging in processes and does not demonstrate an ability to focus on [the child’s] needs. He remains strongly fixed in proving his innocence rather than developing insights into the harm [the child] has experienced with a view to meeting her care and safety needs during any contact he may have had with her.
I find that situation has not changed. His cross examination, his submissions, seems more about him than the child or about his dissatisfaction with the mother.
There was an issue as to whether the Department of Child Safety and the State Magistrate had required the father to undergo sexual offending counselling or counselling dealing with his insights of the effects of sexual abuse on the child. The advocate for the mother said that ought to have been clear to the father that it was the latter form of counselling and he chose not to do so for about 15 to 18 months after December 2005. I am not sure that it was entirely that clear. Certainly, Ms L was confused in relation to it, and I am satisfied that the father was probably confused in relation to it. But the father, in terms of the counselling, seemed always to look to others. He did not take the responsibility himself, and he complained about others. In November 2006, the father had available to him a way to see the child if he undertook counselling, and it took months after that before he saw Dr T. I find that the father was resistant to counselling.
The Department of Child Safety Queensland quite properly would not allow telephone time between had father and child until they had a satisfactory report from Dr T. In terms of telephone generally, I am concerned about the father's lack of insight, which I will develop further in these reasons. I will provide telephone contact, but it will be in accordance with that submitted by the Independent Children's Lawyer in her oral submissions, which reflect that, as I understand it, of the mother through her oral submissions.
The father was critical of the Department for providing him with the suburb where the mother lived and at some earlier time criticised them for not providing him with an address. He cannot have it both ways. It was appropriate for the Department of Child Safety in the circumstances of this matter not to provide the father with the mother's address nor that of the child’s. There were significant risk findings, and the child was at unacceptable risk.
One of the issues I have to deal with is the so‑called scented letter. There is no issue that a letter was sent by the father to the child through the Queensland Department of Child Safety on to W Family Centre and then it was given to the child. There is an issue as to whether the letter that eventually was received by W Family Centre or the child was scented. There is an issue as to whether the child had nightmares or not. There was an issue as to whether it was a male aftershave or perfume. The evidence of Ms L and Ms D was that it was male aftershave. The evidence of the father and his present wife was that it was perfume. On balance, I prefer the independent evidence of Ms L and Ms D.
I find the father had sent this letter doused with aftershave. It was sent in circumstances where the child had alleged serious sexual abuse from him. Whilst the abuse was denied, the father had little insight into the impact that a scented letter might have on her. Nothing has changed in terms of his insight with regard to the child.
What is worrying in this case is also there is some evidence, from the father's sister, given about the father by the Queensland Department of Child Safety, that she had been sexually abused by one of her elder brothers. The father had lived in a home with his brothers at a time his sister made complaints of sexual abuse. There is no evidence that the father sexually abused his sister, and I make no finding in that regard, but it is surprising that the father, when these issues are in place, again, lacks insight into the care and the need to protect the child.
It is of concern in this case, in addition, that the Queensland Department of Child Safety sought the assistance of the New South Wales Department of Community Services with regard to the child who has been living in New South Wales since 2006. This is a case where there had been significant allegations of sexual abuse and where a care order had been made and where a child in New South Wales was subject to a Queensland order. Evidence was given that the New South Wales Department of Community Services was approached but said it did not have the resources to deal with this matter. If that is the case, it is frankly disgraceful. The policy makers behind such a disgrace, if it is the case, ought to hang their heads in shame. I will be making an order that documents, reports, these reasons and these orders are forwarded to the New South Wales Department of Community Services, and it is my hope that they read these reasons and understand my concerns for what is absolutely clear is this child does need support, and the mother needs support, and that the best place for those supports in New South Wales is through the Department of Community Services. If they wish to ignore the concerns this Court has, well, then, so be it, and at least they cannot say they were not informed about it. I will be making orders that the Independent Children's Lawyer provide copies of that material to the Department of Community Services New South Wales.
Evidence was given by the father in accordance with his affidavit. He said in cross‑examination that he did not understand that he was required to undertake counselling as an abuser. I note I have already made findings in that regard. The father offered a number of explanations as to why he had not seen Dr T earlier or spent time with Dr T. I find the father is not particularly interested in counselling, except as a device or mechanism for him to see the child. Dr T does not accept the child is at risk of sexual abuse from the father, and his evidence is quite odd, bearing in mind his first report and his second report and, frankly, the findings of Magistrate Taylor.
In any event, Dr T sees little purpose in psychological counselling. I have been urged by both the Independent Children's Lawyer and the mother to ensure that the father undertakes further counselling before he sees the child in accordance with the orders that I will be putting in place. I am aware of the difficulties the father says he has encountered and the costs of counselling. It seems to me that the counselling will serve little or no purpose and, accordingly, I will not be making an order that he undertake counselling. But this has to be seen in the context that I will not be making the orders in the long term that the father wants, that is, that this is an introduction and an invitation for the father to come back and seek further time with the child. The time I propose will be so the child has knowledge of her father but not in any way to develop a meaningful relationship.
It is interesting that the father in his evidence said that there was no issue that the child had been sexually abused, and that he himself had that belief at the time he was interviewed by the police in 2004. Yet the father was resistant in that year to the child obtaining counselling for this sexual abuse because the father believed that it impacted upon him and he wanted the abuse established before he would consent to that.
The father gave evidence that he respects the mother, although I do not accept that evidence. He does not trust her. He used derogatory terms about her with his psychologist, and it is clear the father and mother are unable to communicate. I repeat how the father informed the mother that the school had been disclosed. It could have been done by a telephone call to the mother's lawyer or the Independent Children's Lawyer in some subtle sense, but it was almost used as a tactic to show he knew something. It shows insensitivity and poor communication.
The father and his wife were critical of Associate Professor Q in terms of the approach with the meeting with the child. Strangely, so was Dr T. This was a child who had made serious allegations of sexual abuse against the father and had not seen him for many years. The child was, on the evidence of Associate Professor Q, which I accept, tremulous at the time she met her father. Associate Professor Q adopted a sensible and sensitive approach so that she could see how the father and child interacted. Criticism of the father was indicative of his lack of the sensitivities of the needs of the child and his lack of insight into those needs.

There was evidence of Associate Professor Q in relation to the father attending school. The mother reacted badly when she saw the father, and I find that this has impacted on the child. However, the child decides she wants the father to attend a particular school occasions, particularly at high school, she is entitled to ask him to do so and write to the father in that regard. I accept the evidence of Associate Professor Q generally in respect to communication, although the attending at school will not occur until the child attends high school, which, as I understand it, will be around her thirteenth birthday.
I accept the evidence of Associate Professor Q with respect to the form of communication between the child and the father. Part of the orders I will make will be an order that the Independent Children's Lawyer inform had child of these orders so that she understands where they are coming from and where they are going.
Under cross‑examination by Counsel of the Independent Children's Lawyer, the father conceded he did not tell Associate Professor Q about an alleged sexual encounter between he and the mother in the presence of the child when she was four. It is worthwhile to touch upon this, and I do it in this way: the mother was not cross‑examined and, as I understand it, she disputed that she had engaged in a sexual activity with the father as alleged by him. However, the father says that he engaged in sexual activity in the presence of the child in the front seat of a car and did not regard that as being inappropriate until such time as it was pointed out to him. Whether or not it happened is, at the end of the day, irrelevant some years later in terms of what happened. But it is relevant in terms of the father's ability to care for and to be insightful into the needs of the child.
The father was upset when challenged about his financial ability to see the child on a fortnightly basis. I accept his evidence that if an order was made, he would be able to manage the travel. However, this is not the significant issue in the case. The father has, it seems to me, the fixed personality as described by Associate Professor Q. Dr T’s evidence was given in accordance with his report. He was critical of Associate Professor Q and on balance I prefer the approach adopted by Professor Q. I do not accept the underlying premise of Dr T that Dr Q had accepted the father had abused the child. Associate Professor Q had quite properly accepted the child was at risk of abuse. Dr T seemed to think that there was no finding that the father had abused the child which, of course, there was not, and that it would automatically lead to eventual unsupervised time if there were no such findings. Frankly, that is not necessarily the approach of this court.
I accept the evidence of Associate Professor Q. She was not shaken in cross examination. Associate Professor Q was of the view, and I accept, that the mother is still fragile and there are significant short comings in her parenting. Her evidence was indicative of that, and I am concerned in that regard. the child had a very close relationship with the F family from whom she was separated in July 2006. The F family are not parties to these proceedings and have not sought any orders, although I will be making a recommendation that they are invited to continue their relationship with the child, and I will be making an order that the Independent Children's Lawyer forward a copy of these reasons and the orders to them so that they are understand that they are welcome in the life of this child.
I am also concerned that the mother is susceptible to emotional and financial manipulation by the father, as was the case in 2003. Having regard to the history of this matter and in the special circumstance of this case, there ought to be an order made under s 64D(2) that the parties are not permitted to enter into a parenting plan which changes these orders. If the parents wish to change these orders, they will need to come back to a court and have a court exercising the jurisdiction over the Family Law Act and consider whether it is appropriate to do so.
The relevant legal principles to be applied in this matter are set out in a number of cases.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child. The section provides as follows:
[1] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(1)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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption is found to apply and is not rebutted as not in the best interests of the child, an order must be made in accordance with s61DA for equal shared parental responsibility. If not, the court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s65DAC. That section provides as follows:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The question of the allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s64B(2)). This is because where the presumption of equal shared parental responsibility applies, the court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s65DAA. In circumstances where s65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a court determines what is in the best interests of a child is set out under s60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss60CC(2) and (3) of the Act. Part of s60CC reads as follows:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistence with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A court must consider the s60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A court must consider each of the additional considerations separately. A court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In most parenting cases the primary considerations set out in s60CC(2) go to the core of the decision, although they must be taken into account with the additional considerations under s60CC(3).
I agree with her Honour Justice Bennett’s approach in the unreported decision of G and C [2006] FamCA 994 that “the court must evaluate the nature and quality of the relationship” to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be ‘meaningful’”. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
In a recent Full Court decision[2] His Honour Justice Boland had cause to discuss the concept of “meaningful relationship” as follows:
67.The provisions of the amending Act have been described as resting on “twin pillars” (see Mazorski & Albright (2008) 37 Fam LR 518 per Brown J at paragraph 3). The first pillar is the importance of a child having a meaningful relationship with both parents; the second pillar is the need to protect children from physical and emotional harm.
68.Brown J’s judgment in Mazorski contains, in my view, a well researched and thorough exposition of the amendments, with reference to the Explanatory Memorandum, and the legislation itself. Her Honour’s discussion is helpful and her conclusions about s 60CC(2)(a) are cogent.
69.At paragraph 24 of her Honour’s reasons she sets out the dictionary definitions of “meaningful”, and then explains her conclusions on the effect of the term “meaningful relationship”. I respectfully agree with her Honour’s conclusions at paragraph 26 where she says:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
70.In Godfrey & Sanders (2007) 208 FLR 287 Kay J said, in the context of discussing a relocation proposal which involved the father spending less regular periods of time with his child than he was at the date of hearing, “even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
[2] Moose &Moose [2008] FamCAFC 108
I add in this case that there is no doubt that the presumption must be rebutted bearing in mind the findings of the learned Magistrate. That does not, of course, mean that a court ought not to consider equal parental responsibility, it is just that the presumption does not apply. I will deal with that a little later.
Bearing in mind I do not need to make a positive or a negative finding; all I need to establish is that there is an unacceptable risk. I make it clear in this case that I will be making that finding.

UNACCEPTABLE RISK

The approach in deciding a case involving an allegation of sexual abuse was considered by the High Court in M and M (1988) FLC 91-979. At page 77,080, the High Court said:
… the resolution of an allegation of sexual abuse against a parent 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.
The High Court recognised though that findings on the question of sexual abuse will have an important, perhaps a decisive impact on the resolution of the ultimate best interests issue.
As to the relevant standard of proof, the High Court comprising of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ, emphasised that a judge should not make a positive finding that the allegation was true unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336.[3] Their Honours quoted Dixon J (at p.362 of Briginshaw):
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[3] M and M (1988) FLC 91-979 at 77,081.

In a subsequent case of S and R (1999) FLC 92-834 the Full Court of the Family Court warned that to establish a serious allegation such as sexual abuse, the “utmost caution” was needed, given the maker of the statement was a child who was not subjected to cross-examination and whose statement was incapable of being properly tested.
In the recent decision of Johnson and Page (2007) FLC 93-344 the Full Court considered the applicable standard of proof. At paragraph 68, the court cited with approval the approach taken by the Honourable John Fogarty in his paper entitled ‘Unacceptable Risk – A Return to Basics’ ((2006) 20 AJFL 249). In particular, the court said (at para 72):
We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
Section 140 of the Evidence Act provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
I must then consider the allegations of sexual abuse on the balance of probabilities taking into account the matters in s 140 of the Evidence Act.
In M and M, (supra) the High Court acknowledged there would be many cases in which it was not possible for a judge to make a positive finding that sexual abuse had taken place. He or she would then need to determine if there was a risk of sexual abuse, and assess the magnitude of that risk.
The court went on to consider the magnitude of risk that would justify a judge in denying a parent access to a child, and concluded that the test was best expressed by saying that a court should not grant custody or access (now an order in relation to with whom a child will live, or spend time), if it would expose the child to “an unacceptable risk” of sexual abuse.
In B and B (1993) FLC 92-357 the Full Court referred to the “unacceptable risk” test in M and M, and added (at p. 79,778):
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.’ In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
In a recent Full Court decision of Napier and Hepburn (2006) FLC 93-303 the question of unacceptable risk was considered by Bryant CJ, Kay and Warnick JJ. Their Honours Bryant CJ and Kay J said:
79.    The determination of whether the child may have been abused required some assessment to be made as to the father’s credit in relation to his strenuous denials that he has acted inappropriately with the child. The child’s evidence itself was incapable of being tested or necessarily being accurately interpreted. His Honour said that he was unable to reject the allegation as groundless. In doing so, he must by necessary implication have rejected the father’s strenuous denials, but nowhere does he explain why he has done so.
…
84.    There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper
Their Honours went on to say:
99.    Absent there being any reason not to accept the father’s denials, we are not persuaded that the evidence reasonably leads to a conclusion that unsupervised contact poses an unacceptable risk of harm to J.
Their Honours also said:
82.    What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.
From this decision it seems clear that establishing that an unacceptable risk exists remains a challenge.
In the recent decision of Brown J in McCoy v Wessex [2007] FamCA 489 her Honour carefully set out the legal principles involved in relation to allegations of sexual abuse at paragraphs 22 to 40.
Her Honour carefully reviewed the law relating to unacceptable risk including the approach adopted by the Full Court in Napier and Hepburn (above) and Potter v Potter (2007) FLC 93-326 and observed that:
38.The Full Court noted (at para 79) that the determination of the question of whether the child may have been abused required some assessment to be made of the father’s credit in relation to his strenuous denials that he had acted inappropriately with the child, and that even a finding to the allegations could not be rejected as groundless ought not lead inevitably to a finding of unacceptable risk.
What is clear is that trial judges have a significant obligation upon them to set out clearly the reasons why an assessment has been made as to the father’s credit in relation to his strenuous denials.
The mother seeks sole parental responsibility with permission to obtain a passport and will inform the father of any major decisions she makes in respect of the child. The father seeks equal parental responsibility. During the course of the trial, I direct that the father file a statement setting out the times he wanted with the child. That is exhibit F4. The parties are unable to talk. The mother is terrified of the father, and there is no way there can be any effective communication between them. If there is communication, the nature of the communication is likely that the mother will be dominated by the father. Bearing in mind the findings in these reasons, it would seem to me that unless there is some form of communication, there cannot be equal shared parental responsibility. It is not possible for that to occur in these proceedings. That is not to say that I am entirely comfortable with the mother having sole parental responsibility.
The father is entitled, however, to be informed of any major decisions with respect to the child, and I will be making orders that the mother have sole parental responsibility and that she inform the father within a reasonable time after exercising those powers. There is no issue as to residence. The primary issue is to whether the child spends time with the father and how the child communicates with the father.
Whatever order I make, even that sought by the father, it will not lead to a meaningful relationship between the father and the child. Bearing in mind the history of this matter and the findings in the Magistrates Court, I see at this stage no benefit for the child in having a meaningful relationship with the father. In that regard, I adopt the submissions of the mother's advocate given yesterday and include those in my reasons.
This child has lost her childhood. She has had to undergo significant counselling and has had a difficult life. She has lived in different houses, different families, and it is troubling that this conflict continues for her.
Bearing in mind that there is no challenge to the findings of the Magistrate, I have to consider what has happened since that time. In my view, nothing positive has happened in terms of the relationship between the father and the child since that time, apart from the father's desire to contact the child. The father has acknowledged in some terms the abuse that I referred to earlier in terms of his alleged interaction with the mother in the car. He has shown a lack of understanding into the impact on the child of him notwithstanding his belief that some abuse had occurred prior to the child going out of his care. Again, I repeat his reluctance to allow the child to undergo counselling until such time as the abuse had been established.
On the basis of that evidence, I am not satisfied the father should have unsupervised time with the child until such time as the child wishes to do so at the age of thirteen. The child should not be permitted to spend any time alone overnight with the father prior to her eighteenth birthday. I see no reason why that should be restricted to sixteen.
I make it clear that the orders I am putting in place are not designed to build a relationship. The Full Court has said something in the past about long term supervision, and I am very aware of those comments. To me, the type of contact the child is having with the father is simply so that she knows her father exists and, having regard to the evidence of Dr Q, that it would be in the child's benefit for her to know the father. But I make it clear it is not designed as a steppingstone to more time or unsupervised time, except as desired by the child subject to the limitation I have put in place after she turns thirteen.
The child's views in relation to the father are ambivalent at best and opposing at worst. I find the mother either intentionally or un intentionally encourages the child to be hostile to the father, although I note the child has from time to time written to the father requesting things.
Associate Professor Q observes in her report:-
The child wishes to retain the status quo, that is living the mother. This has been accepted by both families. She does miss her foster family and is sensitive of them to sustain her correction with them.
I have already dealt with that earlier in these reasons. In terms of the father's approach to parenting, I note Ms L in her evidence said in her report, annexure E, at page 13:-
To date the father has resisted in engaging in this process, which is counselling, to developing insight into the abuse and harm [the child] has experienced in the care and in my opinion has not demonstrated an ability to focus on [the child’s] needs. He remains strongly fixed on proving his innocence rather than developing an insight into the harm [the child] has experienced.
I agree with that evidence, which is, in many ways, continuing. The father blamed the Department for not providing information to him. It is significant that he blames others in terms of any shortfalls he sees in relation to his desires with regard to spending time with the child. The father has no relationship with the child. The child has a relationship with the mother, although, as I said, I have some concerns about that. The child knows her paternal grandmother and paternal aunt and, hopefully, that contact will continue into the future, as will the F family. It is sad that I am not at this stage able to give the mother permission to travel to the Philippines, because the child is entitled to a relationship with her family in the Philippines. However, because of the mother's lack of connection here, her desire to live in the Philippines when the child is 18, her strong family ties there, the level of her debts here, I am not satisfied that she would return the child at this time. I note the Philippines are not a signatory to the Hague Convention.
I am not satisfied that either parent is willing to encourage a close and continuing relationship between the child and the other parent. Hence, my desire to have the Department involved and hopefully the F family, if they are willing to be involved. The effect of these orders will be to enable the child to know her father but do not otherwise broaden, as I said earlier. The father has said he can meet that expense and, accordingly, I will be making orders that he does so. I have concerns as to the parenting of both parents, which I have articulated earlier in these reasons. I have had regard to the lifestyle and background of this child, which, as I said, are challenging for the child. The child has a right to know of her Filipino background, but that can wait a short time, which is some three and a half years.
I have been critical of the attitude to both parents in terms of responsibilities of parenting. I note the allegations of family violence, and I have concerns for the child, bearing in mind the findings of the learned Magistrate. I have noted the family violence orders. I cannot prevent parties from making further applications, although I make these comments in the event of further applications, nothing has changed for this child since 2004 in terms of the continuing litigation. She has been involved in litigation for four of her nine years, and it would be a tragedy for this to continue. The child can, when she attains the age of thirteen, make up her own mind as to the time she wants to spend with her father in her mid teens and late teens, save that it not be overnight. It seems to me that any further application would be doomed to failure and that the resources of the parties are far better being applied to the benefit of this child rather than court proceedings.
The father has endeavoured to spend time with the child since 2004, but his endeavours have been more in terms of vindicating his own position rather than meeting the needs of the child. The father has failed in his obligations to support the child in terms of his child support. I refer to the exchanges between Counsel, myself and the father and myself during the course of the hearing.
I have had regard to all of the factors under s 60CC. This is not a matter where there ought to be significant or substantial time, for the reasons I have articulated. Accordingly, I make the following orders.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:

Date: 22 January 2009

[2009] FamCA 260

22 January 2009

Key Legal Topics

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Family Law

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Jurisdiction

Remedies

Costs

Natural Justice

Procedural Fairness