KENT & SHAW

FAMILY COURT OF AUSTRALIA

KENT & SHAW

[2010] FamCA 587

FAMILY LAW – CHILD ABUSE – allegations of sexual abuse of the child by the father – where the Court is not satisfied the father has sexually abused the child or that there is an unacceptable risk to the child

FAMILY LAW – CHILDREN – FAMILY VIOLENCE – where the mother alleges the father has been violent towards her and the child has been exposed to this – where the father was convicted of breaching a restraining order obtained by the mother – not satisfied there is a need to make orders to protect the child from violence

FAMILY LAW – CHILDREN – with whom a child spends time – best interests – where the child has not spent any time with the father since allegations of sexual abuse were made in 2007 – where there are concerns regarding the father’s parenting skills – where the mother has exposed the child to her negative views of the father – where the mother’s behaviour has led to the child developing an unreasonable fear of her father – child to live with the mother and spend gradually increasing time with the father – orders for the parties and child to undergo therapy – order for the father to attend a parenting course

FAMILY LAW – CHILDREN – parental responsibility – where the presumption of equal shared parental responsibility in s 61DA does not apply as the father has engaged in family violence – where it is not in the child’s best interests for there to be an order for equal shared parental responsibility – mother to have sole parental responsibility

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA & 65DAA
Evidence Act 1995 (Cth) s 140

Briginshaw v Briginshaw (1938) 60 CLR 336
M and M (1988) FLC 91-979
McCall & Clark (2009) FLC 93-405
N and S and the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Kent

RESPONDENT:

Ms Shaw

INDEPENDENT CHILDREN’S LAWYER:

Ian Charman

FILE NUMBER:

ADC

4329

2007

DATE DELIVERED:

15 July 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

24-26 November 2008
27-29 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bolton and Ms Du Barry

SOLICITOR FOR THE APPLICANT:

Boltons Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McQuade and Mr Stewart

SOLICITOR FOR THE RESPONDENT:

Dixon Gallasch

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ian Charman & Associates

Orders

That all previous orders made in relation to the child M born … May 2002 be discharged.
That the said child live with the mother.
That the mother have sole parental responsibility for the said child.
That the parties engage, and cause the said child to engage, in therapy as follows:
(a)For the mother, to assist in:
(i)Acceptance of the Judgment as it relates to findings about the allegation the father has sexually abused the said child;
(ii)The mother’s parenting of the said child in circumstances where:
(1)The said child is being informed that her father did not sexually abuse her;
(2)The said child will be spending time with the father;
(b)For the said child to:
(i)Be informed that her father did not sexually abuse her;
(ii)Support her in having a relationship with her father;
(c)For the father, to assist him in managing his emotions associated with incorrectly being accused of sexually abusing the said child.
That the regime of therapy referred to above be undertaken as follows:
(a)With the mother to commence her therapy as soon as an appointment can be obtained;
(b)After the mother has had two [2] sessions of therapy, the said child to commence her therapy;
(c)The therapy for the mother and the said child be undertaken by the same therapist, if possible;
(d)The father to commence his therapy as soon as an appointment can be obtained;
(e)The therapy for the father be undertaken by the same therapist as sees the mother and the said child, if possible.
That the therapist or therapists to undertake the therapy referred to above be at the nomination of the Independent Children's Lawyer.
That the father pay the costs associated with the therapy referred to above SAVE AND EXCEPT that after the child commences to spend time with the father the father only pay the costs of therapy for the mother for so long as the mother’s therapist recommends that her therapy in relation to the child spending time with the father continue.
That the Independent Children’s Lawyer provide the therapist or the therapists with a copy of the reasons for judgment delivered today.
That after the said child has undertaken four [4] sessions of therapy (or such other number of sessions as the said child’s therapist deems appropriate AND the said therapist be at liberty to liaise with any separate therapist assisting the father in determining this):
(a)The said child be introduced to the father by the said child’s therapist; or, if the said child’s therapist is unwilling to undertake this, then:
(b)The said child commence spending time with the father at the Y Children’s Contact Service in its supervised Contact Program AND the parties do all such acts and things and sign all such documents to enrol in the said Service.
That after the said child has had four [4] introductory sessions with the father in the presence of the therapist (or such other number of sessions as the said child’s therapist deems appropriate) or after four [4] supervised periods at the Y Children’s Contact Service, the said child spend time with the father:
(a)On one day of each alternate weekend, from 10:00am until 2:30pm;
(b)After four [4] periods pursuant to paragraph (10)(a) herein, on one day each alternate weekend from 10:00am until 5:00pm;
(c)After four [4] periods pursuant to paragraph (10)(b) herein, on each alternate weekend from 10:00am on the Saturday until 5:00pm on the Sunday;
(d)After four [4] periods pursuant to paragraph (10)(c) herein, on each alternate weekend from 6:00pm on the Friday until 6:00pm on the Sunday;
(e)From 3:00pm until 8:00pm on Christmas Day 2010 PROVIDED THAT the said child has completed the four [4] introductory periods pursuant to paragraph (9) and the preamble in paragraph (10) herein.
(f)From 2011:
(i)For one half of each of the short school holidays, and in default of agreement as to which half, for the second half of each such school holiday period;
(ii)For one half of the Christmas school holidays commencing in 2011/2012, and in default of agreement as to which half, for the second half of each such school holiday period;
(iii)From 9:00am on 24 December 2011 until 12 noon on 25 December 2011 and during the same times in each alternate year thereafter;
(iv)From 12 noon on 25 December 2012 until 6:00pm on 26 December 2012 and during the same period in each alternate year thereafter;
(v)On the said child’s birthday, if the birthday is on a school day for two [2] hours from 3:30pm until 5:30pm and if the birthday is not on a school day, from 12 noon until 3:00pm on that day;
(vi)On each Father’s Day from 10:00am until 5:00pm PROVIDED THAT if Mother’s Day falls on a day when the said child would otherwise be spending time with the father, then such period be suspended;
(vii)On the father’s birthday, if the child is attending school, from 3:30pm until 5:30pm, and if the birthday is not on a school day, from 12 noon until 3:00pm on that day.
That after the introductory periods referred to in paragraph (9) and the preamble in paragraph (10) herein, handovers be effected as follows:
(a)At the Y Children’s Contact Service;
(b)On the occasions when the Y Children’s Contact Service is not available, then inside the H Police Station.
That the parties notify one another as soon as practicable in the event that the said child is diagnosed with any serious medical condition or suffers a medical emergency in that party’s care.
That the father be at liberty and the mother do authorise the father to obtain any of the said child’s medical reports and medical information from the said child’s doctor and hospital or any other person who provides the said child with medical care or treatment.
That the father be at liberty to visit the said child if the child is in hospital for treatment for more than twenty-four [24] hours, SAVE AND EXCEPT if the treating medical practitioner’s opinion is that the child is not well enough to spend time with the father.
That the mother:
(a)Notify the father, and keep the father notified, of the schools which the said child attends;
(b)Authorise all such schools as the said child attends to release direct to the father copies of the said child’s school reports;
PROVIDED THAT the father be restrained, and an injunction is hereby granted restraining him, from attending at any school which the said child attends.
That the parties be restrained, and injunctions are hereby granted restraining each of them, from:
(a)Denigrating the other in the presence or hearing of the said child;
(b)Permitting any other person to denigrate the other party in the presence or hearing of the said child;
(c)Removing the said child from the State of South Australia without fourteen [14] days prior written notice to the other party.
That the father be restrained, and an injunction is hereby granted restraining him, from using marijuana for twenty-four [24] hours prior to, and for the duration of, all periods of time he spends with the said child.
That the parties use a communication book.
That both parties attend the “Kids Are First” parenting program within six [6] months of the date of this order AND that each of them provide to the other and to the Independent Children’s Lawyer a certificate confirming that party’s attendance.
That forthwith the father undertake a further parenting course as recommended by the Independent Children’s Lawyer.
That the order for the appointment of the Independent Children’s Lawyer be discharged six [6] months from the date of this order.
That all applications be dismissed and removed from the active pending cases list.
That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4329 of 2007

MR KENT

Applicant

And

MS SHAW

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me for determination competing applications for parenting orders with respect to the child M born in May 2002 and now aged 8 years.
Final parenting orders were previously made by consent on 4 November 2004 providing for the child to live with the mother and spend time with the father.
On 8 July 2008 the father filed an Amended Initiating Application in which he sought orders, inter alia, that the parties have equal shared parental responsibility for the child, that the child live with the mother, and that the child spend substantial time with the father.
At the start of trial though the father sought the following orders:
“1.    The child spend time with the father on a gradually increasing basis, by way of reintroduction to the father, culminating in the child spending time with the father on an alternate weekend basis and for half school holidays and special occasion times.
2.      The mother attend for counselling with a suitably qualified therapist to assist her to deal in an appropriate way with her false belief that the father has sexually abused the child.
3.      Prior to time with the father commencing the child attend upon a suitably qualified therapist in order to prepare her for spending time with the father.”
The mother filed a Response to the father’s Initiating Application on 29 May 2008. At the time of trial though the mother sought that the orders of 4 November 2004 be discharged, that the child live with her and that she have sole parental responsibility for the child.
In the course of closing submissions, counsel for the Independent Children's Lawyer detailed the orders that she proposed be made, and subsequently presented the same in writing as follows:
“1.    That the order made by this Honourable Court on 4 November 2004 be, and the same is hereby, discharged.
2.      That the child, [M] born […] May 2002, live with the mother.
3.      That the mother have sole parental responsibility for the said child.
4.      That the parties engage, and cause the said child to engage, in therapy as follows:
a.   For the mother, to assist in:
i.Acceptance of the Judgment as it relates to findings about the allegations the father has sexually abused the said child;
ii.The mother’s parenting of the said child in circumstances where:
1.   The said child is being informed that her father did not sexually abuse her;
2.   The said child will be spending time with the father;
b.   For the said child, to:
i.Be informed that her father did not sexually abuse her;
ii.Support her in having a relationship with her father;
c.   For the father, to assist him in managing his emotions associated with incorrectly being accused of sexually abusing the said child.
5.      That the regime of therapy referred to above be undertaken as follows:
a.   With the mother to commence her therapy as soon as an appointment can be obtained, following the delivery of Judgment;
b.   After the mother has had 2 sessions of therapy, with the said child to commence her therapy;
c.   That the therapy for the mother and the said child be undertaken by the same therapist, if possible;
d.   With the father to commence his therapy as soon as an appointment can be obtained, following the delivery of Judgment;
e.   That the therapy for the father be undertaken by the same therapist as sees the mother and the said child, if possible.
6.      That the identity of the therapist or therapists to undertake the therapy referred to above be at the nomination of the Independent Children's Lawyer.
7.      That the father pay the costs associated with the therapy referred to above.
8.      That after the said child has undertaken 4 sessions of therapy (or such other number of sessions as the said child’s therapist deems appropriate AND that the said therapist be at liberty to liaise with any separate therapist assisting the father in determining this):
a.   The said child be introduced to the father by the said child’s therapist; or, if the said child’s therapist is unwilling to undertake this, then:
b.   The said child commence spending time with the father at the [Y] Children’s Contact Service in its supervised Contact Program AND the parties do all such acts and things and sign all such documents to enrol in the said Service.
9.      That all therapy undertaken pursuant to the orders herein be reportable, unless the therapist or therapists are unwilling to undertake their tasks on that basis.
10.    That after the said child has had 4 introductory sessions with the father in the presence of the therapist (or such other number of session as the said child’s therapist deems appropriate) or after 4 supervised periods at the [Y] Children’s Contact Service, the said child spend time with the father:
a.   On one day of each alternate weekend, from 10.00 am until 2.30 pm;
b.   After 4 periods pursuant to paragraph 10(a) herein, on one day each alternate weekend from 10.00 am until 5.00 pm;
c.   From 2010, each Father’s Day from 10.00 am until 5.00 pm PROVIDED that if Mothers [sic] Day falls on a day when the said child would otherwise be spending time with the father, then such period be suspended;
d.   From 3.00 pm until 8.00 pm on Christmas Day each year PROVIDED that the said child has completed the 4 introductory periods pursuant to paragraph 8 and the preamble to 10 herein.
11.    That after the introductory periods referred to in paragraph 8 and the preamble to 10 herein, hand overs be effected as follows:
a.   At the [Y] Children’s Contact Service;
b.   On the occasions when the [Y] Children’s Contact Service is not available, then inside the [L] Police Station.
12.    That the parties notify one another as soon as practicable in the event that the said child is diagnosed with any serious medical condition or suffers a medical emergency in that party’s care.
13.    That the mother:
a.   Notify the father, and keep the father notified, of the schools which the said child attends;
b.   Authorise all such schools as the said child attends to release direct to the father copies of the said child’s school reports;
PROVIDED that the father be restrained, and an injunction is hereby granted restraining him, from attending at any school which the said child attends.
14.    That the parties be restrained, and injunctions are hereby granted restraining each of them, from:
a.   Denigrating the other in the presence or hearing of the said child;
b.   Permitting any other person to denigrate the other party in the presence or hearing of the said child;
c.   Removing the said child from the State of South Australia without 14 days prior written notice to the other party.
15.    That the father be restrained, and an injunction is hereby granted restraining him, from using marijuana for 24 hours prior to, and the duration of, all periods of time he spends with the said child.
16.    That the parties use a communication book.
17.    That both parties attend the “Kids Are First” parenting program within 6 months of the date of this order AND that each of them provide to the other and to the independent children’s lawyer a certificate confirming that party’s attendance.
18.    That the appointment of the independent children’s lawyer be discharged 6 months from the date of this order.
19.    That all proceedings otherwise be dismissed and removed from the Pending List.”
Upon hearing the orders proposed by the Independent Children’s Lawyer, the father’s counsel indicated that his client agreed with those orders, but sought the following additional orders:
“1. That after the introduction of day-time contact it move to one overnight each alternate weekend, and then subsequently to a full weekend, from 6:00pm on the Friday until 6:00pm on the Sunday.
2. That there be orders in terms of sub-paragraphs 3(c) to (l) of the father’s Amended Initiating Application.”
With the mother, her counsel in his final address indicated that if neither sexual abuse nor an unacceptable risk of sexual abuse were found then the orders proposed by the Independent Children’s Lawyer would be acceptable to the mother but only up to the point where supervised time at the Children’s Contact Service was reached.

Factual background

The mother was born in 1958 and is now aged 52 years.
The father was born in 1959 and is now aged 50 years.
The parties commenced a relationship in 2000, but they have never lived together.
The parties’ child M was born in May 2002 and is now aged 8 years.
The parties separated in approximately November 2002.
On 12 February 2003 the father commenced proceedings in the Family Court seeking orders for contact with the child.
On 26 March 2003 the mother obtained a Domestic Violence Restraining Order against the father.
On 4 November 2004 final parenting orders were made by consent by Dawe J. Those orders provided, inter alia, for the child to reside with the mother and to have contact with the father, increasing to each alternate weekend from 6:00pm Friday until 5:00pm Sunday commencing on 7 September 2005. The orders also provided for the child to have contact with the father on her birthday, Father’s Day and Christmas Day. Pursuant to the orders the mother was to have sole parental responsibility for the day to day care, welfare and development of the child, and the parties were to share responsibility for the child’s long term care, welfare and development. The father was also restrained from smoking cigarettes or consuming any illicit drugs, including marijuana, or alcohol to excess eight hours prior to and during the father’s contact with the child.

Between 24 August 2004 and May 2007 ten child protection notifications were made with respect to the child, all relating to concerns regarding the father’s care of the child following the child’s return from time with the father. All ten intakes were found not to raise any reasonable suspicion of abuse or require further investigation and were recorded as “Notifier only concerns”.
On 20 June 2005 the father was convicted of four counts of failing to comply with the domestic violence restraining order obtained by the mother. The father was placed on a bond to be of good behaviour for a period of 12 months in the amount of $500.
On 20 May 2007, after returning home from time with the father, it is alleged that the child said to the mother that her “wee wees” were sore whilst the mother was assisting the child to wash herself in the shower. Following this disclosure the mother and then the maternal grandmother examined the child, both allegedly observing that the child’s genital area was red and inflamed and “appeared grazed”. There were also allegedly two bruises “the size of a 10-cent piece” inside both of the child’s knees. According to the mother, when asked what happened the child responded “Daddy touched my wee wees with his fingers and put a rock in it.” The mother says the child kept repeating this, also saying that “Daddy’s never done it before.” The mother says that she contacted the Child Abuse Line to report her concerns.
On … May 2007, the child’s birthday, the child spent time with the father. According to the mother she was advised by the Child Abuse Line not to send the child to spend time with the father, but decided to do so following advice she says she received from the Legal Services Commission Family Law Hotline regarding the need to comply with court orders.
On 21 May 2007 the mother was advised by Families SA not to send the child to spend any further time with the father pending an investigation.
On 31 May 2007 Families SA advised that they had commenced an investigation in relation to the child’s alleged disclosure.
On 1 June 2007 the mother advised Relationships Australia that she would not be providing the child for time with the father upon advice received from Families SA. The father has not spent time with the child since 21 May 2007.
On 10 and 12 July 2007 the child was interviewed by Child Protection Services (‘CPS’). This interview was observed by detectives from the Family Violence Investigation Section.
On 9 August 2007 a forensic medical examination of the child was undertaken by Dr E. The examination result was normal and it was recorded there was no evidence of hymenal injury.
On 13 August 2007 the father commenced proceedings in the Federal Magistrates Court, filing an application seeking enforcement of the orders of 4 November 2004 and seeking make up time with the child.
On 17 September 2007 the matter was transferred to the Family Court.
On 26 September 2007 the mother filed a Response to the father’s application seeking paragraphs 2 to 15 of the orders of 4 November 2004 be suspended and seeking that the matter be included in the Magellan program. The mother also filed a Notice of Child Abuse or Risk of Child Abuse, outlining the disclosure of alleged child abuse made by the child on 20 May 2007 which was under investigation.
On 27 September 2007 the matter was accepted into the Magellan program.
On 5 October 2007 the father was interviewed by police regarding the mother’s allegations. The police investigation was completed on this date and the father was advised that no further action would be taken in relation to the allegations.
On 12 October 2007 the father was interviewed by CPS.
On 22 October 2007 CPS provided a report prepared by Ms C, Senior Social Worker. It was recorded in this report that although the child had disclosed being digitally penetrated in the vagina by the father during her interview with CPS, given concerns regarding the child’s account, it was not possible for CPS to conclude that the child had been sexually abused by the father. CPS, however, could not “preclude the possibility that [the child] may have been exposed to sexual abuse, inappropriate touching or inappropriate sexual material.”
On 25 October 2007 Families SA provided a letter to the Magellan Registrar, advising that CPS were unable to substantiate that the child had been sexually abused and the outcome of the investigation was “abuse NOT confirmed”.
On 26 October 2007 Dawe J made orders, inter alia, for the appointment of an Independent Children's Lawyer and for the preparation of a Family Assessment Report. Her Honour also suspended the orders providing for the father to spend time with the child and restrained both parties from discussing or allowing anyone else to discuss the allegations with the child and restraining the parties from permitting the child to be interviewed, assessed or counselled unless both the parties and the Independent Children's Lawyer were consulted and consented to such interview or counselling.
On 21 December 2007 Burr J continued the orders of 26 October 2007 suspending the father’s time with the children and the injunctions granted restraining the parties. Orders were also put in place for the father to be permitted to purchase Christmas presents for the child and for such presents to be given to the child by the mother.
On 22 January 2008 Dr A, Family Consultant, provided a Family Assessment Report. Dr A recommended that the child spend no time with the father if it is determined abuse has occurred and in the absence of any acknowledgment by the father of inappropriate behaviour. If it is determined that no abuse has occurred, Dr A recommended, following “therapeutic preparation”, the introduction of “graduated times” to be spent between the father and child at a pace that the child “appears to be able to manage comfortably.”
On 30 January 2008 Burr J made further orders suspending the orders providing for the father to spend time with the child and again granting injunctions restraining the parties in the same terms as those made by Dawe J on 26 October 2007.
On 11 April 2008 the father filed an Application seeking final parenting orders.
On 29 May 2008 the mother filed a Response.
On 25 June 2008 a Child Dispute Conference was conducted by a Family Consultant with the parties.
On 8 July 2008 the father filed an Amended Application.
On 22 July 2008 a first day of a less adversarial trial pursuant to Division 12A of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) was held before me. It readily became apparent that the matter was not ready for trial. It was identified that there was a need to issue subpoenas to both South Australia Police and CPS and the matter needed to be adjourned for this purpose. No evidence was given at this hearing.
On 29 August 2008 orders were made for the conclusion hearing to commence not before 24 November 2008, for further subpoenas to issue and for affidavits to be filed.
On 20 November 2008 a directions hearing was held to address issues relating to the circumstance that the father was no longer represented, and including the inadequacy of his affidavit of evidence in chief. I made an order allowing the father to file a further affidavit and I also made an order pursuant to s 69ZT(3) of the Act providing for all the rules of evidence to apply.
The father was able to obtain some legal assistance and he filed a further affidavit of his evidence in chief on 21 November 2008.
The conclusion hearing commenced before me on 24 November 2008. The father was still unrepresented, and in presenting his case he gave brief oral evidence in chief and then he was cross examined by counsel for the mother. The next day the father applied for an adjournment to obtain legal representation for the balance of the hearing. In the end result the father was able to arrange for his previous solicitor to act for him and to appear as counsel. The hearing was adjourned for a short time to allow for that solicitor to attend, and the case proceeded through 25 November 2008 but then had to be adjourned on 26 November 2008 because more hearing time was needed and the father’s solicitor could not continue for the balance of that day.
According to the mother the child repeated her disclosure regarding the father’s alleged behaviour on three further occasions. “Not long” after Christmas 2008 the child allegedly said to the mother that “daddy is mean to me and makes me cry and puts rocks on my wee wees” and that “he pulls my pants down to do it.” The mother also says that after Easter 2009 the child again said to her “I am not going to go to my daddy’s because he is mean to me and puts rocks on my wee wees.” According to the mother, on 23 April 2009 the child said to her friend “I don’t go to my daddy’s anymore either and I don’t sleep there because he puts rocks on my wee wees”.
The trial resumed on 27 April 2009, and continued on 28 and 29 April 2009, when judgment was reserved.

The current circumstances of the parties

The mother

The mother resides with the child in a rental property. The child has her own bedroom.
The mother does not work and is in receipt of a disability pension for “reactive arthritis”.
At the time of trial the child was doing well at school but the mother did not want the father to know what school the child attended or what year she was in and thus no evidence was presented that would identify these things (for example see Exhibit F5).

The father

The father is employed as a plant operator. He works five days a week between the hours of 7:00am and 3:00pm.
The father owns his own home where he lives alone. The child is able to have her own room there.
The father pays child support to the mother, in the amount of $693 per month.

The issues in dispute

The ultimate issue is whether, and if so, on what terms and conditions, the child should spend time with the father. Primarily that will depend on what the Court makes of the allegation that the father has sexually abused the child. Relevant also is the allegation that the father has no or limited parenting skills, and is unable to meet the needs of the child.
The father of course denies all of these allegations, and if the allegation of sexual abuse is unfounded that brings into play the effect of that allegation on the child. In other words, the child has been prevented from spending any time with the father for a significant period of time, she has been subject to questioning and scrutiny by the mother, the maternal grandmother, and Dr R, a medical examination by Dr E, and two interviews by Ms C at CPS. In addition, there is no doubt that the child now believes that she has been abused by the father, and there must be a query about her relationship with him and what the future might hold in that regard.
The mother also alleged that the father had been violent to her in the presence of the child and that the father had, and was continuing to stalk her. The father denied the allegations of violence, admitted that he had stalked the mother in the past, but denied that he was still doing that.

The applicable legislation

In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act. The objects of those provisions of the Family Law Act relating to children are:
(a)to ensure 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 children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the 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; 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. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, the Court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of s 60CC, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(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. (Section 60CC(2))
Additional considerations
(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); and
(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. (Section 60CC(3))
The Court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the Court. (Section 61C)
Under the provisions of s 61DA(1) when making a parenting order 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. However, this presumption does not apply in certain circumstances, namely 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.
Further the presumption may be rebutted by evidence 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. (Section 61DA(4))
If the Court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the Court does not make an order for the child to spend equal time with each of the parents the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))

The evidence

The father was unrepresented at the commencement of the trial. On 25 and 26 November 2008 Mr Bolton appeared on behalf of the father. On 27, 28 and 29 April 2009 he was represented by Ms Du Barry of counsel. The father relied on his affidavit filed on 21 November 2008 and his parenting questionnaire filed on 18 June 2008. He gave evidence and was cross examined.
The mother was represented by Mr McQuade and then Mr Stewart. She relied on her affidavits filed on 19 June 2008 and 27 April 2009 and her parenting questionnaire filed on 23 June 2008. She gave evidence and was cross examined.
The mother also relied on an affidavit filed by the maternal grandmother on 31 October 2008. The maternal grandmother gave evidence and was cross examined.
The Independent Children’s Lawyer was represented by Ms Cocks. She relied on the CPS report prepared by Ms C and dated 22 October 2007, and the report of the Family Consultant Dr A dated 22 January 2008. Both of these experts gave evidence and were cross examined. Indeed the Court called Dr A to allow all counsel to cross examine her.
The Independent Children’s Lawyer also relied on the report of Dr E dated 20 August 2007. However, she was not required for cross examination.
The father presented as naive and lacking in sophistication, but ultimately I found him to be a genuine witness. When he was unrepresented he had almost no idea of what was happening and what was required of him, and he was continually non-responsive. In cross examination he was defensive, and as a result his evidence became confused, and he tied himself in knots at times. For example, in describing the activities of 20 May 2007 his recollection of the timing of these activities became inaccurate and inconsistent, and particularly as to when the child had a shower. His oral evidence was also inconsistent as to whether he used a flannel or not in assisting the child to wash herself and in particular her genital area.
I also note that “out of the blue” on the second day of the hearing the father announced that he admitted to “touching” his daughter “three times on the wee-wees and once on the bum”. However, it soon became apparent that this was not an admission of sexual abuse, but a statement to clear the air. He explained that when she was three years he had “touched” her by placing cream on her genitals and bottom at the request of the mother. The evidence was quite clear that the child had a history of urinary tract infections resulting in redness and soreness, and that the mother supplied the father with anti-fungal cream to use after showering.

On a separate topic, the father was also initially defensive about his past drug taking. When interviewed by Ms C he denied using drugs, yet in cross examination he admitted that he smoked marijuana, and that he kept it at home. He explained that he denied using drugs because he thought it would “look bad” for him.
Despite these flaws in his evidence, to repeat, I consider that the father was a genuine witness and he ultimately gave truthful evidence; the inconsistencies, the confusion, and the false denials all had innocent explanations.
The mother was no more sophisticated a witness than the father. However, in relaying information to the various authorities, in completing her affidavits, in giving oral evidence about what the child said to her and what questions she asked the child, significant inconsistencies and inaccuracies emerged which cannot be explained away in the same way as in the father’s evidence. This is particularly so in relation to what was said, and by whom, and in what order in relation to the possibility of the child falling off her bike as a reason for her physical symptoms. This also arose in the mother’s recall of the order of events on the evening of 20 May 2007, and what questioning took place of the child on 21 May 2007. I will elaborate on these issues when I deal with the allegations themselves later in these reasons. It is clear though that the mother believes that the father has sexually abused the child, and that is the driving force behind everything she says. It fuels her recollection of conversations and events. She justifies this with the simplistic statement that she believes what the child has said because the child never lies. The naivety of this statement though becomes apparent when what the child said is analysed. For example, that would mean that there was in fact a “rock” placed on her vagina, and it would mean that what the child told Ms C, namely that “mummy was there” when it happened was correct. In the end result the mother reluctantly agreed that to accept that the father sexually abused the child the child could not be telling the truth about this and many other things that she has relayed to Ms C for example. However, that did not change the mother’s view that the father has sexually abused the child, and it is clear that she has a closed mind on this topic.
It is also apparent that the mother has gilded the lily in many ways. For example, she deposes in paragraph 17 of her affidavit of evidence in chief that after inspecting the child’s genital area she “discreetly” called in her mother to look as well. However, the grandmother’s evidence and the report given by the mother to others tells a different story, and also puts the lie to the mother deposing in paragraph 18 of that affidavit that nothing was said “to alarm” the child about any concerns that the mother had. In her affidavit the grandmother deposed that the mother called out to her in “what was a distressed cry to come and have a look at [the child]”, and in cross examination the mother ultimately conceded that even before she had asked the child what had happened the child would have been shocked and alarmed at her reaction to the appearance of her genitalia.
Further, the mother told Dr E who examined the child at the request of CPS, that she observed “blood” there, but this was not said in any other report that the mother made or in any affidavit filed by her, and in cross examination when describing again what she saw she said the child was “not bleeding”.
In explaining the inconsistencies and the inaccuracies between the versions of events and conversations the mother claims that the report writers have got it “wrong”, but I do not accept that, and I find that what the mother has relayed to them at various times has been recorded accurately.
It was put to me by the counsel for the Independent Children’s Lawyer that the mother was not being vindictive or malicious in making the allegation of child sexual abuse. Now that may be so, but it is quite clear that she wants the Court and everyone else for that matter to accept that the father has sexually abused the child, and she is prepared to do and say whatever it takes to justify that view. In this regard, it is instructive that when told by Ms C at the feedback session that the child disclosed touching by the father, the clear evidence of Ms C is that the mother “smiled” and did not appear distressed. Further, she ultimately conceded that the only reason she took the child to see Dr R, despite the CPS investigation being current, and despite being told that the child should not be questioned and that she should not be seen by any other doctor, was to promote a finding of child sexual abuse, and in the process to have Dr R question the child rather than her.
Finally, it needs to be highlighted that the mother clearly did not like the father, and that also coloured her evidence.
The maternal grandmother was clearly supportive of the mother’s position and had no time for the father. In these circumstances I need to be circumspect in the weight that I attach to her evidence.
The maternal grandmother included in her affidavit whatever she could think of that might either put the father in a bad light or indicate that he had abused the child. For example, in paragraph 18 she said this:
“18. On the 19^th September 2008 both [the mother] and [the child] were staying with me as they were both very unwell and I was looking after them. I called a locum in because [the child’s] temperature had reached over 39 degrees Celsius. [The child] slept with me on that night because she wanted me to comfort her. In the morning when she woke up and asked me to feel how hot she was at the top of her legs. [The child] then said to me ‘only you and mum and Aunty [S] can touch me there’ and I said ‘that’s right’, she then said ‘Dad has rats and mice in his house’.”
However, in cross examination she could not explain how this indicated that the father had abused the child.
Her evidence also added to the confusion that existed surrounding the child being asked about falling off her bike. In paragraph 13 of her affidavit she said that it was she who put this to the child, yet in her affidavit the mother said that she did. Importantly though, in cross examination the grandmother confirmed her version but said that subsequently the mother told the child that she must tell the truth because it needs to be reported to the police and to the doctors, and the child then said that she had in fact fallen off her bike. Again, I will refer to this in more detail later in these reasons.
Dr A gave her evidence well. She is now an experienced Family Consultant and her report reveals an astute and insightful assessment of the parties and the child. It is instructive to set out here her evaluation in full:
“Evaluation
42.This evaluation is limited in that the information gathered can be relied upon only to the extent that the parties are truthful. This couple’s perceptions of themselves and of each other appeared to differ markedly. [The father] portrayed [the mother] as potentially malicious and unacceptably non-protective in that he suggests she has coached [the child] in her allegations and that she ([the mother]) is motivated, without regard for her child’s wellbeing, to be rid of him from the child’s life. [The mother] portrayed [the father] as potentially corrupting and unacceptably non-protective in that she believes he has, without regard for his infant child’s wellbeing, sexually abused the child.
43.It must be noted that the potential veracity of the reported information might be supported when consistent reporting of allegations have occurred as in this particular situation. However this family assessment cannot establish the facts of the matter or the factual credibility of any involved party. Legal testing of the allegations, it would appear, may be required prior to any decisions regarding ongoing times to be spent between [the child] and [the father].
44.At the time of the assessment [the child] was five years and eight months. She appeared emotionally vulnerable, anxious and tearful when she consistently reported that she did not want to see her father. Her reports of abuse to this writer were consistent with those she expressed to her mother, her maternal grandmother, and the forensic child protection service.
45.Significant issues of concern as previously described, allude to the lack of meaningful relationship that has always distinguished this child’s parents’ parenting qualities and capacities. This lack would appear to preclude civil and dignified conversations between the parents wherein ways forward to address [the child’s] needs could be established. Such hostile distance and distrust does not auger well for [the child’s] chances at having two parents working together in her best interests.
46.Another aspect of concern is that if sexual abuse has occurred then this child appears to be at risk because even with supervised times to be spent, the antecedents that led to the abusive behaviour have not been addressed. If abuse has occurred, then at the time [the child] made the allegations she reportedly made them with distress. If abuse has occurred the child is likely to have been in a cognitively and emotionally distorted relationship which would constitute emotional and psychological abuse.
47.If, on the other hand, sexual abuse has not occurred, the concerns are that significant harm has been done to [the child’s] potentially beneficial relationship with her father. In this context, challenges to [the child’s] and her maternal family’s negative and fearful views of [the father] would require significant and skilled intervention for any successful and trusting relationship to be recommenced between [the child] and her father.
48.[The child’s] wellbeing is now likely to be impacted whether or not the sexual abuse has taken place. If it has, and if the child remains convinced that is was her father who abused her, then even supervised times spent, between [the child] and [the father], may be distressing and detrimental to the child.
49.The importance to [the child] of trusting and loving relationships with her mother and/or her father is significant and should only be put aside where and when her requirements for safety and security are apparently not forthcoming. The purpose of a secure attachment for [the child] is that is predicates the child’s ability to trust others and to form meaningful relationships. A secure attachment will provide [the child] with safe foundations for her interaction with others and exploration of her environment.
50.However, where a child’s attachment to a parent is marked by a child’s belief that the parent is an unsafe person who has abused her, as it appears [the child] believes, then that attachment, if supported by ongoing times spent, may possibly be described as an insecure, ambivalent or disorganised attachment. The purpose in maintaining such a relationship for the child would need to be clarified because any attachment that is not a secure one may offer unacceptable risks for the child’s short and long term emotional and psychological wellbeing.
51.It is important to note prior to making recommendations that if a judicial finding determines that sexual abuse has occurred, there would be strong concerns for [the child’s] emotional and psychological wellbeing if she continues spending time with her father if indeed he continued to deny or acknowledge in any way inappropriate behaviour, particularly given her parents’ antipathy towards each other. Under these circumstances only supervised times to be spent, on a very infrequent basis, could be proposed together with a concomitant assurance that [the child] has access to counselling to enable her to discuss any concerns she may have.
52.If a judicial finding determines that sexual abuse has not occurred then it is important to note that prior and during the initial process of resuming times spent between the child and her father that [the child] and her mother and maternal grandmother are likely to benefit from ongoing therapeutic intervention. [The father] is also likely to benefit from such intervention.”
Ms C was a Senior Social Worker at CPS at the relevant time, and she had a long history of working in the area of child protection. Initially, on 10 July 2007 she conducted a preliminary interview with the child to allow her to become acquainted with her and with the CPS environment. As a result of this interview Ms C determined that the child was capable of participating in a forensic interview. That interview then took place on 12 July 2007. It was recorded on audio tape and DVD, and was observed by two detectives from the Family Violence Investigation Section. The DVD and audio tape were played during the hearing and I have closely read her report.
In my view, Ms C made an error of judgement in considering that the child was capable of participating in a forensic interview. In the forensic interview the child clearly had no idea what was happening, she did not understand what was being asked, and she was confused in her responses. This should have been immediately apparent to Ms C, and she should have stopped the interview. However, she proceeded, and she ended up with a completely confusing account which was of no value in attempting to make an assessment of whether the child had been abused or not. I will elaborate on this later in these reasons, but for now the other concern I have about the interview and the report is that in her summary and conclusions Ms C has not accurately summarised what the child said, and she has made unjustifiable assumptions. However, from the account that the child gave, how Ms C was able to proffer any opinion at all is beyond me. Her opinion seems to be that the child made a disclosure, but because of her inability to provide consistent information it is not possible to conclude that the child had been sexually abused by the father. The more accurate comment should have been that it was impossible to reach any conclusion because of the confused nature of the child’s account. In short, I consider that the report and the evidence of Ms C cannot be accorded any weight at all. To repeat, it should not have proceeded beyond the preliminary interview, or the forensic interview should have been abandoned once it became apparent that the child was not capable of participating.

Section 60CC of the Family Law Act

I now turn to the factors that I must take into account in determining what is in the best interests of the child.

The primary considerations

(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

At the time of the hearing the child had a close and loving relationship with her mother, and it could easily be described as meaningful. However, because of the orders in place, the child had not seen the father since 20 May 2007, and it was unlikely that any relationship existed let alone a meaningful relationship.
The question raised in this hearing by the mother is that given the father’s alleged behaviour, and given the child’s belief that the father has abused her, is there any benefit to the child in having a meaningful relationship with the father? On the other hand, the father says that it is necessary and clearly in the child’s best interest for there to be a meaningful relationship.
The phrase “meaningful relationship” is not defined in the Act, but some guidance is provided by the objects in s 60B. One object is to ensure that the best interests of the children are met 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;” (Section 60B(1)(a))
Then there are the principles underlying the objects and one such principle is that except where it is or would be contrary to a child’s best interests:
“(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);” (Section 60B(2)(b))
It has been said that the objects and principles in s 60B guide the interpretation of s 60CC and for that matter s 60CA. Now that may be the case, but the best interests of the child are still the paramount consideration and that is quite apparent from the wording, for example of s 60B(1)(a) and s 60B(2)(b).
Section 60CC(2)(a) clearly operates at the level of general principle, and is a reminder to the court of the importance of the benefits to a child of having a meaningful relationship with each parent. It requires the court to take those benefits into account but leaves the additional considerations in s 60CC to determine whether those benefits can be achieved in each individual case consistent with the best interests of the child involved.
That accords in my view with what the Full Court said on this topic in the recent case of McCall & Clark (2009) FLC 93-405, namely:
“118.It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)    one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)    a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)    the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120.We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
…
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.”
This again highlights the respective positions of the parties, the father saying that orders should be crafted to ensure that the child benefits from a meaningful relationship with him, and the mother saying that in the circumstances of this case no positive benefit will be derived by the child in having a relationship with the father.

Parental responsibility

The father did not seek any order for parental responsibility, and in particular he did not seek an order for equal shared responsibility. Of course that is not surprising given his attitude to major long term issues as referred to above. The mother though sought an order for sole parental responsibility, and the Independent Children’s Lawyer supported that outcome.
In any event, regardless of what each of the parties want, pursuant to s 61DA of the Act, when making a parenting order, the Court is required to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
The presumption does not apply though in certain circumstances, and it can be rebutted. Here, it does not apply because the father has engaged in family violence, but of course, an order for equal shared parental responsibility can still be made if it is considered to be in the child’s best interests.
Both the mother and the Independent Children’s Lawyer submit that it is not in the child’s interest for there to be equal shared parental responsibility, and of course the father does not seek that. The relevant issues are the fact of the Domestic Violence Restraining Order, the entrenched conflict between the parties, the lack of trust, the lack of cooperation, and the lack of communication between them. Thus, there is no doubt in my mind that there should not be an order for equal shared parental responsibility. The issue then becomes though whether the mother has the sole responsibility or whether no order is made allowing s 61C of the Act to apply. That section provides as follows:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
In the end result I will order that the mother have the sole parental responsibility. The evidence is quite clear that despite the failure by the mother to facilitate the father’s involvement in the major decisions affecting the child the father has been content to leave those decisions to the mother.

Conclusion

Having regard to the evidence, the submissions of the parties and the Independent Children’s Lawyer, and the principles relevant to my determination, and including in particular the objects and principles set out in s 60B of the Act, I find that it is in the best interests of the child that the mother have sole parental responsibility for her, that the child continue to live with the mother and that orders be put in place to ensure that the child is able to spend time with the father and re-establish her relationship with him.
Dr A in her insightful evaluation identified the need for “significant and skilled intervention for any successful and trusting relationship to be recommenced between [the child] and her father”, and it is useful in framing appropriate orders to reflect on all that Dr A said in that evaluation. In this regard I refer to the quotation from her report set out in paragraph 86 above.
In her oral evidence Dr A elaborated on the sort of program that she would recommend in an attempt to balance the need for therapy and the need to sensitively reintroduce the child to the father, bearing in mind the mother’s negativity and the child’s belief that the father has abused her. The mother will inevitably be anxious and the impact of that on the child needs to be managed. Equally the father needs help to address his thoughts and feelings about the mother.
Helpfully the Independent Children’s Lawyer has taken up the recommendations of Dr A and presented a comprehensive proposal as to the orders that should be made. I have set that out in full in paragraph 6 above.
I have also set out in paragraph 7 above the father’s response to those orders. Additionally, I note that although the father is prepared to pay for the therapy, understandably he is not prepared for that to be open ended as far as the mother is concerned.
I have set out the mother’s response in paragraph 8 above. That position is based on the lack of parenting skills of the father and his inability to set boundaries.
For my part, I consider that the proposals of the Independent Children’s Lawyer are in the best interests of the child, save and except that I do not consider that it would be appropriate for the therapy to be reportable. That notion runs counter to the usual and recognised view that therapeutic counselling should not be reportable to ensure that the therapist is able to establish an appropriate trusting relationship and for the parties to speak freely to the therapist. It is also important in my view that the role of a therapeutic counsellor vis-à-vis the child not be confused with the role undertaken by experts for a forensic or investigative purpose.
It also seems to me that the father’s additional orders should be made. It is necessary to approach this exercise from a positive stand point, and if it is successful then an appropriate outcome would be putting in place the sorts of orders that the father proposes. Otherwise, for the matter to progress there would need to be further proceedings in this court, and that is undesirable from not only the child’s point of view but also from the parties’ perspective. On the other hand, if the exercise turns out to be unsuccessful then it is appropriate that the onus be placed on the parties themselves to bring the matter back before the Court if that is what is required.
Obviously, it can be seen that I have rejected the mother’s proposal. Although I have found that there are real concerns with the father’s lack of parenting skills, that alone does not justify restricting the time that the child spends with her father in the way that the mother proposes. That may have been appropriate if there had been a different finding in relation to the allegation of sexual abuse, and in that regard this clearly indicates that the mother is still looking to use that allegation to place hurdles in the path of the father having involvement in the child’s life. Nevertheless, there is still a need to address the father’s lack of parenting skills, and I propose to make an appropriate order for him to undertake a further parenting course.

I certify that the preceding 176 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 15 July 2010.

Associate

[2010] FamCA 587

15 July 2010

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Family Law

Legal Concepts

Remedies

Injunction