Laffer & Laffer

[2008] FamCA 769

FAMILY COURT OF AUSTRALIA

LAFFER & LAFFER [2008] FamCA 769

FAMILY LAW – CHILDREN – with whom a child lives and spends time – part-heard trial – where father discontinued applications and took no further part in proceedings – where extensive evidence already taken – both mother and child have mild intellectual disability and epilepsy – allegations of sexual abuse of child by father – consideration of s 60CC factors – need to protect child from possibility of abuse – child to live with mother – child to spend time with paternal grandmother as agreed and with father on occasions child with paternal grandmother – father’s time with child to be supervised by paternal grandmother.

FAMILY LAW – CHILD ABUSE – allegations of sexual abuse – discussion of  standards of proof applicable to positive finding of sexual abuse and finding of unacceptable risk – where parts of evidence untested due to father’s withdrawal from proceedings – unsafe to make a positive finding of unacceptable risk – preliminary finding justified on evidence.

FAMILY LAW – CHILDREN – parental responsibility – where presumption of equal shared parental responsibility not appropriate – mother to have sole parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – orders not to constitute basis for refusal of any future application on Rice and Asplund test – evidence heard during trial to constitute part of evidence in any future proceedings.

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

Briginshaw and Briginshaw (1938) 60 CLR 336
M and M (1988) FLC 91-979
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192

APPLICANT: MS LAFFER

RESPONDENT: MR LAFFER

INDEPENDENT CHILDREN’S LAWYER: MARILYN JOY BUCKERFIELD

FILE NUMBER: ADF 1238 of 2006

DATE DELIVERED: 3 SEPTEMBER 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 14,15,16,17, 21, 23, 24 APRIL 2008 & 3 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: Croydons

COUNSEL FOR THE RESPONDENT: Ms Horvat

SOLICITOR FOR THE RESPONDENT: O'Briens Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Noble

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That all previous current orders of this Court be and the same are hereby discharged.

2. That the child … (“the child”) born … January 1998 live with the mother and that the mother have sole parental responsibility for the child.

3. That the child spend time with the paternal grandmother at times as are agreed between the parties.

4. That the child spend time with the father on occasions when the child is spending time with the paternal grandmother, but always upon condition that the father’s time is supervised at all times by the paternal grandmother.

5. That Exhibits 1 and 2 tendered during the trial of these proceedings not be released by the Court to any person and not be destroyed save and except by further Order of a Judge of this Court.

6. That in the event that the father institutes further proceedings in this Court or another Court of competent jurisdiction that these Orders do not constitute a basis upon which his application ought to be refused on the Rice and Asplund test.

7. That in the event that the father does institute further proceedings, the evidence given and taken in these trial proceedings before the Honourable Justice Burr constitute part of the evidence in any subsequent proceedings.

8. That the Honourable Justice Burr not be deemed to be part-heard as between the parties.

9. That all applications be otherwise dismissed and removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1238  of 2006

MS LAFFER

Applicant

And

MR LAFFER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

Issues  

1. On 14 April 2008 I was tasked with the responsibility of determining disputed proceedings between the parties.  The issues between them were in relation to the one child of their relationship, a daughter born in January 1998 and who is currently therefore 10 ½ years of age.  The issues that the parties required me to determine were:-

   1.1.whether or not there ought to be equal shared parental responsibility or whether sole parental responsibility should vest in the mother;

   1.2.with whom the child should live;

   1.3.what time the child ought to spend with the parent with whom she did not live and within that context, whether or not the father, by dint of allegations made that he had sexually abused the child, presented as an unacceptable risk to the child.

Background

1. The mother is some 10 years older than the father, being in the order of 49 years of age and the father 39 years of age.  They met in 1991 through friends and commenced cohabitation in 1995.  They were married in May 1996 and the child was born in January 1998.  Neither of them was employed outside the home prior to separation and therefore both contributed to the care of the child, although the evidence clearly supports a finding that the paternal grandmother was of substantial assistance to the parties in caring for the child.

2. The mother suffers a mild intellectual disability and epilepsy which she has under control with the assistance of medication.  Since separation the mother has required occasional assistance from Disability SA with paperwork, budgeting, transport and care of the child.  The mother does not hold a driver’s licence due to her epilepsy.

3. The child too suffers a mild intellectual disability and epilepsy and takes the same medication for the epilepsy as does the mother.  The experts who gave evidence in these proceedings take the view, and I accept their view, that the child’s intellectual disability is at a lesser level than that of the mother.

4. The child attends B Primary School and receives special assistance at that school.

5. The parties separated some two years ago on 25 August 2006 after an incident in which the father assaulted the mother.  Their cohabitation was thus for a period in the order of 11 years.  There was some general unpleasantness at around the time of the separation which included the father and the paternal grandmother unilaterally attending at the matrimonial home and removing the child from the mother’s care. The father thereafter lived with the child at the paternal grandparents’ residence.  He withdrew the child from school and retained her for about a week.

6. On 28 August 2006 the mother took out domestic violence restraining proceedings and an order was made as against the father.  She then filed proceedings in this Court on 30 August 2006.  There were some subsequent activities by the father which constituted breaches of orders and consequent action was taken against him.  I am satisfied that the evidence supports a finding that the father made a number of threats against the mother including one to hit her in front of the child whilst he attended at her school on 20 September 2006.

7. A number of orders in this Court were made by Senior Registrar Kelly on 13 September 2006 providing that the child live with the mother and then spend alternate weeks with the father from after school Wednesday until the commencement of school Friday and then in the intervening week, from after school Thursday until the commencement of school Monday.

8. The significant event which prompted much of the trial agitation occurred in October 2006 when the mother’s evidence was that the child had disclosed to her that the father had lifted her from her bed and taken her to his own bed indicating that he wanted some cuddles and that he needed her.  The child reported that her father was naked at the time. 

9. Further orders were made by Senior Registrar Kelly on 17 November 2006 confirming the previous orders made by her but also ordering the preparation of a Family Assessment and granting a non-molestation injunction against the father.

10. On 16 December 2006 charges against the father for breaching the restraining order were withdrawn.

11. Within the context of the allegations of sexual abuse of the child by the father, the mother’s evidence was that the child made further disclosures to her in December 2006.  The mother immediately contacted her disability support workers namely Ms G and Ms D and reported that the child had something that she wanted to tell them.  It was the evidence of Ms G and Ms D that the child then made disclosures supporting what the mother had earlier described.

12. On 18 December 2006 the mother filed a Form 4 Notice of Child Abuse in these proceedings.

13. On either 7 or 8 February 2007, the child was interviewed by Senior Constable O.  A video tape of that interview was made and constitutes Exhibit 2 in these proceedings.  The disclosures made by the child during that interview were essentially in the same terms as the mother indicated the child had disclosed to her and Ms G and Ms D indicated the child had disclosed to them.  It was the view taken by the police that the evidence did not support criminal proceedings and so no such proceedings were ever taken.  However Families SA recorded that the allegations of sexual abuse of the child by the father were confirmed.  That led to orders being made on 12 February 2007 that the child live with the mother and spend time with the father from 10.00 am until 5.00 pm each Sunday, but supervised by the paternal grandmother.

14. On 13 February 2007 the paternal grandmother declined to act as a supervisor and consequently the father did not spend any time with the child until the observed interaction sessions for the purposes of preparing the Family Assessment report.  That report was prepared by Dr S and the observations for the preparation of that report took place on 23 April 2007. 

15. Consequent upon receipt of that report dated 11 May 2007, I made orders on 20 August 2007 that the child live with the mother and spend time with the father only at the B Children’s Contact Service (“CCS”) for at least two hours each alternate Saturday. That was essentially as a consequence of the paternal grandmother’s refusal to act as a supervisor and the demonstrated need for the child to have some relationship with her father in safe circumstances until the Court had an opportunity to test all of the evidence.

16. That order was varied slightly by Dawe J on 25 October 2007 when she provided liberty to the paternal grandparents to also attend at the CCS while the father was having time with the child.  The paternal grandmother attended the second hour of five of those visits and the paternal grandfather for the second hour of four of those visits, being 12 in total from 20 August 2007 to January 2008.

17. A further updated Family Report was prepared consequent upon interviews with the parties on 10 January 2008.  I then made further orders for the father to spend time with the child at the CCS, those orders being made on 20 February 2008.  I also made provision for the paternal grandmother to supervise time outside of the CCS.

Evidence

1. There has been extensive evidence given and taken in these proceedings, including both of the parents and the paternal grandmother.  Experts who gave evidence included Dr S, Ms G (one of the mother’s and the child’s disability support workers), Ms Y of Families SA, Ms D (another of the child’s and the mother’s disability support workers) and Senior Constable O who interviewed the child on either 7 or 8 February 2007. 

Standards of proof

1. I am fully aware of and very conscious of the standards of proof that are appropriately applied in cases involving allegations of sexual abuse of a child.  Whilst I must apply the civil standard of proof and be satisfied as to that allegation on the balance of probabilities, the seriousness of the allegation and the potential consequences and ramifications of same require a variation of that standard as defined by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 where Dixon J said:-

   “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.”

2. That passage was cited with approval by the High Court in M and M (1988) FLC 91-979 where at page 77,081 they said:-

   “His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute.”

3. The Briginshaw test has been adopted in Section 140 of the Evidence Act 1995 (Cth) and is expressed in the following terms:-

   “140.(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 which a 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.”

1. I have applied that test when making my findings in relation to the allegations of sexual abuse.

2. However, the learned Judges in M and M (ante) then went on to say, also at page 77,081:-

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.”

A little later, the learned Judges of the High Court said:-

“In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.”

After reviewing a number of attempts by the Courts to provide a formulation to resolve that dilemma and to assess the risk, the High Court settled upon the following (also at page 77,081):-

“To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

1. In Re W (Sex Abuse: Standard of Proof) [2004] FLC 93-192, the Full Court said this at paragraph 47:-

   “In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1975 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.”

2. Any findings I make in relation to an unacceptable risk are made after application of the ordinary civil standard of proof, namely the balance of probabilities.

3. I have detailed the allegations as to the sexual abuse alleged to have been perpetrated by the father on his daughter and propose to make no further reference to it, save in terms of the evidence given this day by Ms D.

4. Today though there was a dramatic turn of events in that the father instructed his Counsel that he wished to discontinue his applications in these proceedings and take no further part in the proceedings.  This was despite extensive evidence having been given and taken on 14, 15, 16, 17, 21, 23 and 24 April 2008.  The proceedings were then adjourned to today’s date to conclude the evidence and the proceedings generally.  Counsel for the father was given leave to withdraw.  That action by the father substantially altered the approach that I deemed it was appropriate to take as both Ms D and Senior Constable O were present at Court and prepared to give their evidence.  I deemed it appropriate that they be given the opportunity to do so and they did.  However, given the position taken by the father there was no opportunity for that evidence to be tested in cross-examination by his Counsel.  Thus whilst the evidence on a preliminary basis has such a compelling quality about it that I might on a preliminary basis form the view that the father constituted an unacceptable risk to the child in unsupervised circumstances, it is my view that it would be unsafe to make that a positive finding of the Court given that some significant parts of the evidence have not been tested. 

5. However, I am equally confident that it is appropriate to make final orders today, such orders being in the nature of securing the child’s future in the event that the father determines never to take any further active role in her life and in particular, through further proceedings in this Court or any other Court of competent jurisdiction.

Relevant law

1. It is necessary though for me to canvass the relevant provisions of the legislation which are set out in Part VII of the Act. The overriding principle set forth in Section 60CA is that I must regard the best interests of the child as the paramount consideration. In reaching that determination I have to have regard to the provisions of Section 60CC and within that Section, it sets forth some primary considerations and additional considerations.

Primary considerations

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

1. Some guidance as to what a meaningful relationship means is found in the Objects and Principles outlined in Part VII of the Act. The objects and principles are now stated in Section 60B in the following terms:-

   (1)The objects of this Part are to ensure that the best interests of 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; 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.

   (2)The principles underlying these objects are that (except when it is or 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 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

2. It is not in my view necessary for me to provide extensive reasons under each of these heads as it would have been if I was required to make findings in a fully contested environment.  What is irrefutable though is that the father did have a significant role in the care of the child prior to separation and the evidence of the experts and particularly Dr S indicates that the child does love her father and has a need to spend some time with him. Thus I think it is my obligation to endeavour within the difficult environment created by the father’s withdrawal from these proceedings, to make orders that provide for as meaningful a relationship as it is safe to do so in the circumstances between the father and the child. 

1. That meaningful relationship I am confident can be supported by the close relationship that the child enjoys with her paternal grandparents, but in particular the paternal grandmother.  Dr S supports the paternal grandparents as being appropriate supervisors of any time that the child might spend with the father.

(b)the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence;

1. I have canvassed the allegations within the context of sexual abuse and in my view, on a preliminary basis, it requires me to make orders that do protect the child from the possibility of abuse by her father.  My view of the evidence, on a preliminary basis, although untested, obliges me to be cautious in that regard and to treat the matter as being one where a preliminary finding of unacceptable risk is justified on the evidence.  The position I adopt in that regard and what has constituted my level of satisfaction at the relevant standard on a preliminary basis was particularly reinforced today, not so much by viewing the video tape which is Exhibit 2, but the evidence of Ms D.  It was Ms D and Ms G to whom the mother took the child on 1 December 2006 when the child indicated that she had some things that she wanted to say to the two disability workers.  To them the child confirmed that her father had put his hand down her pants, that she didn’t like it and that she wanted to stop seeing her father.  Ms D said that the child’s affect at the time was as a distressed and upset child.  She said she was afraid, that she was clinging to her mother and that she was very anxious.  This was within the context of a child who Ms D said was ordinarily a very independent child, being a child in respect of whom she had had numerous opportunities to earlier observe her level of independence and her general effect.  Her affect and demeanour that day was very different from the child with whom she had ordinarily associated.  She further said that she had no sense that the child had been groomed to make such a statement or give such evidence.  She said that that was as a consequence of the language that the child was using and her body language.  Her general experience with the child was that she was an honest child, reinforced in a sense by her intellectual disability in that it was Ms D’s view that that disability would impact upon her capacity to lie.  She said that it was her view that the child would have difficulty remembering lies and remembering instructions.  It was Ms D’s opinion that given her general level of distress and the fact that she was convinced that the child had not been groomed, that the child was describing her actual experience at the hands of her father.  She said that the child kept reiterating that she did not want to go and see her father and that she wanted Ms D and Ms G to help her stop seeing her father as she was not happy there.

2. When pressed by Counsel for the Independent Children’s Lawyer, Ms D said that it was her opinion that the child was telling the truth.

3. There was some other evidence of a disturbing nature as to the physical altercations that occurred between the parties and the appalling language that they adopted at times, both to and in the presence of the child.  In that respect each of the parties made admissions that they were guilty of using such language to and in the child’s presence.

4. There are a number of additional considerations enumerated in Section 60CC.

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 wishes;

1. In the overall evidence to the Court, the child expressed a number of mixed views about where she wanted to live and in her interview with Dr S for the purposes of the preparation of the first report she made a number of conflicting statements as to whether or not she wanted to spend time with each of her parents and her paternal grandparents and indeed at times indicating wanting to live with each of them.  Given the child’s mild disability and the conflicting statements made by her, it is inappropriate in my view to place any weight upon the child’s expressed 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);

1. I am satisfied that the evidence demonstrates that the child loves both of her parents and the paternal grandparents.  In fact I think it supports a finding that she has a particularly close relationship with the paternal grandmother.

2. The maternal grandparents are deceased and the wife’s only relative is a sister and her son who live in Victoria.

3. The reports of the B CCS support a finding of a close relationship existing between the child and the paternal grandparents, more so in fact than between the child and her father.  In fact it was the father’s evidence during the proceedings that he was occasionally annoyed at the fact that the child concentrated her attentions on his parents rather than upon him and seemed to choose them over him.

(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;

1. The mother told Dr S that she would prefer that the child not spend any time with the father or his parents.  She also said that if it was the view of the Court that the child ought to be spending some time either with the father or the paternal grandparents that such time ought to be supervised.  Given the level of discomfort that I have about the allegation of sexual abuse of the child by the father, and given that the child made such disclosures to the mother and in the presence of the mother to the disability support workers, I am satisfied that it was a reasonable view for the mother to adopt that any time spent between the child and her father ought to be supervised.

2. Whilst there are some other attitudes expressed by the mother during her evidence that would cause me some concern as to her capacity to support a relationship between the child and her father, I am nonetheless satisfied on the evidence that she had a genuine reason for expressing concerns and being cautious in promoting that relationship.  I am comforted by the intimation from her Counsel today that despite the father’s withdrawal from the proceedings the mother supports an ongoing relationship between the child and the paternal grandparents, particularly the paternal grandmother and indeed would support the father having some time with the child whilst the child was with the paternal grandmother provided such time was at all times supervised by the paternal grandmother.

3. I am generally satisfied that apart from his pre-emptive and ill-advised actions early in the separation in removing the child from the mother’s care that the father is generally supportive of the relationship between the mother and the child and is of the view that the child is best served by living with her mother.

(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;

1. Given the father’s withdrawal from these proceedings this is not a matter that requires me to offer any concentrated attention.  There will essentially now be no changes for the child.  She will remain living with her mother and any time that she spends with her father will be supervised by the paternal grandmother.  The one change which is regrettable from the child’s perspective is that she will be spending less time with her father than she had been in the relatively recent past.  It may be that that can be corrected by a change of heart by the father and a supported supervised environment by the mother and the paternal grandmother.

(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;

1. This is not an issue for the parties.  The mother lives at B.  The father and paternal grandparents live in P. Thus they are separated by only some 7 kilometres.  The mother is no longer considering a move to Victoria.

2. Whilst the mother is unable to drive the father has a driver’s licence. 

(f)the capacity of:

(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;

to provide for the needs of the child, including emotional and intellectual needs;

and

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. In my view it is appropriate to consider these two sub-sections together.  I mentioned earlier the inappropriate language used by the parties in the presence of the child and indeed to the child.  Such language and other conduct on their respective parts indicates that in a number of respects neither of them demonstrates in the fullest sense an appropriate capacity to provide for the child’s emotional and intellectual needs.  There was evidence, which I accept and which was acknowledged in part by the father, that when the child approached him for assistance with her homework and he was on the computer, he would tell her in quite inappropriate and uncomfortable terms that he wasn’t going to help.  He also admitted using quite base language in saying to the child that the mother was having a sexual relationship with an acquaintance called E.  The words he used were “Your mum has been rooting [E]”.

2. The mother though too was observed at the CCS in saying to the child “You’re pissing me off”.   She further acknowledged that she may have in the past said to the child that “You are a fucking little bitch”.  There are other examples which it is not necessary for me to detail in these reasons.

3. The mother’s mild intellectual disability and epilepsy of course presents obstacles in her path to providing a full intellectual and emotionally secure experience for the child but I am satisfied that she does her best within the limits of her capacity and supported by her disability support workers.  There is some suggestion in the evidence that the father himself may indeed be suffering a mild intellectual disability but the father has always declined to take up the opportunity to have the appropriate level of testing to determine whether or not that is the case.  Certainly some of his conduct, behaviour and language suggest that he might always fall short of the mark in providing appropriately and adequately for the child’s emotional and intellectual needs.  However, I am satisfied that the mother, with the support she receives, provides the best care that is available for the child in the circumstances.

(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;

and

(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;

and

(j)any family violence involving the child or a member of the child's family;

1. These sub-sections do not require any attention from me.

(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;

1. There was an order made against the father after separation, but that order expired on 28 August 2007 and the mother has not sought any further orders. 

(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;

and

(m)any other fact or circumstance that the court thinks is relevant.

1. In my view, the reasons I have provided do not require me to give any further attention to these sub-sections.

2. Nor, in my view, am I required to give any detailed attention to Section 60CC(4). However, again in my view, the conduct described on the part of the father, the concerns the Court has about him presenting as an unacceptable risk to the child and the fact that he has withdrawn from these proceedings suggests that it is appropriate that I overturn the presumption that there ought to be equal shared parental responsibility. In my view it is appropriate to make an order that the mother have sole parental responsibility for the child.

3. Section 65DAA requires no attention by me.  It is not appropriate in the general circumstances of this matter to order that there be any equal time or any substantial or significant time that the child ought to spend with the father.

I certify that the preceding fifty five (55) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: