LANDON & MACLIN

FAMILY COURT OF AUSTRALIA

LANDON & MACLIN

[2015] FamCA 241

FAMILY LAW – CHILDREN – Best Interests – Where the mother alleged the father had physically and sexually abused the child – where at the conclusion of the hearing those allegations were withdrawn and the mother conceded that the father did not represent a risk of harm or abuse to the child – where nevertheless those allegations were found to be baseless – where the mother has withheld the child from the father – where the mother’s actions were consistent with a determined effort to exclude the father and the paternal family from the child’s life – where the evidence supports a finding that the mother abuses alcohol to her detriment and adversely to the interests of the child – where the mother’s capacity as a parent and her ability to provide for the child’s needs is impaired – where the child has been exposed to both psychological and emotional harm in the mother’s household – children’s views – where the father has accepted responsibility for the consequences of his drinking and has maintained unwavering commitment to the child – where the father and the paternal family will support a relationship between the child and the mother – Child to live with the father – where the child needs to have a complete break from the mother so as to settle into new arrangements and have a peaceful period of not hearing critical statements about the father and not being questioned – child to spend limited supervised time, after a four week hiatus, with the mother for a period 12 months – thereafter, child to spend supervised time with the mother for two weekend days per month

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility is rebutted – father to have sole parental responsibility – father to consult the mother in relation to decisions made about the long term welfare of the child

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT:

Mr Landon

RESPONDENT:	Ms Maclin
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid Newcastle

FILE NUMBER:

NCC

919

2014

DATE DELIVERED:

9 April 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

23, 24, 25, 26 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duane

SOLICITOR FOR THE APPLICANT:

Julia Clarke Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Snelling

SOLICITOR FOR THE RESPONDENT:

Bell Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That all prior parenting orders in relation to B born … 2010 (“the child”) made in the Federal Circuit Court and in this court are discharged.
That the father have sole parental responsibility for the child.
That the child live with the father commencing forthwith.
That the father take the following steps on each occasion that a decision about the long term welfare of the child (including but not limited to education, specialist medical attention and religious instruction) is to be made:
(a)Advise the mother in writing of the issue to be determined and his own proposal in that regard;
(b)Invite the mother to respond within a nominated period reasonable in the circumstances;
(c)Provided the mother has responded within the nominated time, take any proposal she makes into account;
(d)Advise the mother in writing of the decision taken.
That the father may enrol the child at C School or at such other school in the local area of his residence as he considers appropriate.
That the child shall spend time and communicate with the mother as follows:
(a)Commencing no sooner than four weeks after the date of these Orders, for a period of 12 months for two (2) hours each alternate weekend, supervised by accredited supervised contact service providers nominated by the father, alternately in the Suburb E area and the F Town/G Town area, with the parties to:
(i)Forthwith engage with the contact service providers;
(ii)Pay in equal shares the costs of the contact service providers;
(iii)Comply with the dates, times and venues for the child’s time with the mother as determined by the contact service provider;
(iv)Comply with all other requests or directions of the contact service provider.
(b)By telephone on the child’s birthday, the mother’s birthday and Christmas Day, with the father to assist the child to telephone the mother on a number provided to the father by the mother.
(c)Thereafter as agreed between the parties and failing agreement:
(i)For not less than two (2) weekend days in each calendar month, supervised by a service which provides supervision in the community from 10.00 am to 5.00 pm on each occasion, with at least one of the periods of time to take place in the F Town area and the other either in the F Town area or in the area where the mother is living.
(ii)By telephone between 6:30pm and 7:00pm on each Wednesday in addition to those occasions set out in Order 6(b) herein.
That in the event that the mother adopts the recommendation of the Family Consultant in relation to therapy or otherwise enters a therapeutic relationship with a psychiatrist or clinical psychologist for a course of treatment/therapy as advised, then leave is granted to the mother to provide to such nominated professionals, copies of:
(a) The Family Report dated 26 September 2014; and
(b) These Orders and Reasons for Judgment.
That the parties are restrained from denigrating each other or members of each other’s family to, or within the hearing of the child, and from allowing other persons to do so.
That the parties are restrained from discussing these proceedings or issues raised in these proceedings with, or within the hearing of the child, and from allowing other persons (save for the Independent Children’s Lawyer) to do so.
That the parties are to ensure that the other parent is informed as soon as reasonably practicable of any serious medical matter involving the child when he is in their care.
That these Orders are sufficient authority for the parties to obtain, at their respective cost, information in relation to the child from any medical professional treating him.
That these Orders are sufficient authority for the parties to obtain, at their respective cost, information including notices, newsletters, reports, photographs and the like in relation to the child from whichever school he is attending.
That the father shall provide a copy of these Orders to the principal of the school in which he enrols the child.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC919/2014

Mr Landon

Applicant

And

Ms Maclin

Respondent

And

Legal Aid Newcastle
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing parenting applications in respect of one B born in 2010, now five years old (“the child”).
The applicant is the father, aged 42. He lives in the F Town area, in the property which was previously the family home. He is in full time employment in the local area.
The respondent is the mother, aged 47. The child is living with her and together they live in the home of the maternal grandmother in a township on the western side of the Region H area of Sydney. She works part time as a retail sales assistant. She has two adult children from an earlier marriage who live independently.
The distance between the parties’ homes is about 260 kilometres.
The parties met through the internet in 2009. The child was conceived soon after. At that time the mother was living in the Region I of Sydney and the father was living where he does now, in the F Town area.
In December 2009 the mother moved from Sydney to live with the father.
In 2010 the child was born.
In March 2014 the parties separated. The mother moved with the child to live where she does now, with the maternal grandmother, west of the Region H.
Extremely serious allegations have been raised by each of the parties about the conduct of the other.
The first application was filed by the father in the Federal Circuit Court in

April 2014.
The matter was transferred to this Court on 29 October 2014 and was allocated into the Magellan Protocol in December 2014.

Issues Arising

The issues raised by the parties relate to an alleged risk of harm and of abuse of the child.
The mother had alleged sexual, physical and emotional abuse of the child by the father. At the conclusion of the hearing those allegations were withdrawn and the mother conceded that the father did not represent a risk of harm or abuse to the child. The final position of the mother was that there was a meaningful relationship between the father and the child, which should continue in the future without supervision.
At that point for the mother, the main issue was the impact on the child of a change of residence sought by the father and supported by the

Independent Children’s Lawyer.
The father alleged that the mother had unduly influenced the child and/or fabricated allegations of sexual abuse of the child by the father. I have found that the allegations made against the father are baseless and generated by the mother.
The second issue raised in the proceedings is one of capacity.
The father alleged that the mother has a long standing problem with alcohol and aggressive abusive behaviour when affected by alcohol. There was evidence which supported those allegations.
The mother alleged that the father was a regular heavy drinker himself which adversely impacted on herself and the child. There is evidence to support the father’s abuse of alcohol on some occasions.
The mother had historically made an allegation that she was raped by the father in mid-2013. There is evidence the mother reported the alleged rape nine months after the event and that she retracted the allegation in conversation with the Family Consultant three months after that in June 2014.The mother raised the allegation again in these proceedings without pressing for a finding.

The Evidence

The documents relied on in respect of the application were as follows:
The Father
(a)Further Amended Initiating Application filed by the father in Court on 23/03/2015;
(b)Notice of Child Abuse filed by the father on 15/10/2014;
(c)Notice of Child Abuse filed by the father on 11/04/2014;
(d)Affidavit of the father (consolidated) filed 18/03/2015;
(e)Affidavit of the paternal grandfather filed 05/06/2014;
(f)Affidavit of the paternal uncle filed 05/06/2014;
The Mother
(g)Response filed by the mother on 30/04/2014;
(h)Notice of Child Abuse filed by the mother on 22/09/2014;
(i)Notice of Child Abuse filed by the mother on 01/05/2014;
(j)Affidavit of the mother filed 10/03/2015;
(k)Affidavit of the mother filed 18/09/2014;
(l)Affidavit of the mother filed 30/04/2014;
(m)Affidavit of the maternal grandmother filed 30/04/2014;
Reports
(n)Magellan Report dated 23/01/2015;
(o)Child Inclusive Memorandum dated 19/06/2014;
(p)Family Report dated 26/09/2014.

Short History of Relevant Events

In December 2009 the parties began living together in the father’s home in F Town.
They had not had much opportunity to be together in the period between meeting in April 2009 and beginning to live together in December 2009.
The father says he was unaware of the mother’s problem with alcohol and slowly became aware of it during the course of their four years together. The father noticed full bottles of alcohol going missing but was not too concerned about it.
The father readily conceded that he is somebody who drinks beer regularly after work and more heavily around cricket training, playing cricket and social activities involving cricket through the summer.
When the child was born the mother asked the father to go and get her a couple of stubbies of beer. To the father’s eyes, she appeared very anxious about being in hospital. She broke into tears and told the father she was frightened. The father went to the hotel opposite the hospital and bought two stubbies of beer. When he returned to the hospital with the stubbies, the mother drank both of them immediately in front of him.[1]
[1] Father’s Affidavit filed 18/03/2015, pars 21-22
The mother’s version, which I do not accept, was that it was natural for parents to want to celebrate the birth of a child with a glass of champagne, but all that the father had been able to come back with was beer.[2]
[2] Mother’s Affidavit filed 30/04/2014, par 28
The father was in the habit of keeping the cricket club beer and spirits in his garage in cartons. Stocks became depleted. The mother was not working. The father was paying bills and providing for the household. Sometimes items purchased by him were taken back by the mother for a cash refund.
The subject of drinking was raised by the father with the mother. He says, and I accept, that the mother threatened that she would leave and take the child with her and that the father would not see him again.

Incident of 7 May 2012

On 7 May 2012 there was a potentially dangerous incident, which luckily resulted in no harm. The mother was caring for the child and another child from playgroup whilst the father was at work. When the mother of the other child came to collect her child, she found the mother unconscious on her bed with her breasts exposed. The two children, then aged two, were unsupervised but unhurt.
The other child’s mother attempted to wake the mother but was unable to do so. She rang for an ambulance. The father was notified and he came home. He found police and ambulance on site. The mother was by then conscious on her haunches and sobbing. The mother appeared to be heavily intoxicated.
The mother strenuously resisted being taken to hospital but was physically placed in the back of the ambulance by police, who also made a notification to the Department of Family and Community Services (“the Department”).
After the mother was taken away, the father found one bottle of red wine in the mother’s bedside drawer and another in the child’s clothes drawer which had leaked all over his clothes. There was a third bottle underneath the vanity in the bathroom. They were all open and partly consumed.
The mother was breath tested, presumably at the hospital, with a reading of 0.363. The mother was released into the father’s care and referred by a GP to a psychologist under a mental health plan. A medical certificate issued from the GP noting that the mother required care at home for a nine day period and nominated the carer as the father.[3]
[3] Exhibit 10
At that time the mother advised the GP that she was very happy with her current situation as a mother and with family life, enjoying it and functioning well, but had a past history of childhood abuse and at times she has memories of this which she now feels ready to deal with to prevent it bringing her down in the future. She had been caring for others most of the time, but was now ready to deal with own issues.[4]
[4] Exhibit 10, Orange Flag B
The mother began a course of counselling and the father began his own course of counselling seeking help in how to cope with the mother’s drinking and the need to care for the child. His counsellor made a Report to the Department.[5] The Department classified the situation as medium risk and closed the file because the father had arrived home to care for the child.
[5] Father’s Affidavit filed 18/03/2015, Exhibit D
It appears that this was an opportunity lost in that the mother did not seek specific treatment for alcohol abuse, but rather focused on the issues from the past which she considered were the cause of the incident.
The father began storing the cricket club alcohol in the boot of his car and doling out bottles of wine to the mother on request, in the mistaken belief that he could control the situation.
I accept his evidence that he wanted his relationship with the mother to work, that he wanted her to cease drinking at risky levels and he wanted to maintain a family unit for the child. In his oral evidence the father said that he had since been advised that his conduct had enabled the mother to continue dangerous drinking. I consider that the father was comfortable in a relationship with somebody who drank most days, as was his practice.
The other consequence was the mother became increasingly resentful. She says this, “He was controlling me on every level. He did not even let me drive my own car. I was not allowed to go out unless he came also”.[6]
[6] Mother’s Affidavit filed 30/04/2014, par 44
I note also as significant the mother conceding the incident of 7 May 2012; she stated that she was ashamed of it and regretted it. However, she identified the father as the cause of it, “I had been upset about [the father] flirting with certain girls who were then cyber-bullying me on the internet”.[7]
[7] Mother’s Affidavit filed 30/04/2014, par 37
The mother then went on to say that she suspected the father of having other relationships and became distressed and drank red wine.
If I accept this evidence, the inference I can draw is that the mother has a tendency to drink to excess when she feels upset and distressed. If I do not accept the evidence, the inference I can draw is that the mother is unwilling to accept responsibility for her own actions and was fabricating excuses. On either basis her capacity as a parent is impaired.
The mother explained her physical resistance to being taken to hospital as a general anxiety of hospitals. The mother also said that she attended five sessions with the psychologist but could not continue because the father would not pay for any more sessions.
I reject that evidence.
On the sixth session of counselling on 30 August 2012, the therapist noted that the mother appeared to be slightly intoxicated. He recommended a further set of sessions and there was a mental health plan put in place. I conclude that the mother ceased attending because she chose to.
The uncontroverted facts are that in the early afternoon when the mother was alone in the house with two 2 year olds in her care, one of them being her own child, she brooded over adult concerns between herself and the father and drank sufficient alcohol to achieve a blood alcohol level, later taken at the hospital, seven times that of the prescribed blood alcohol level in respect of driving.
Whilst I do not doubt that the mother felt ashamed and humiliated in a small community about this incident, I do not consider that she has taken any steps to address the abuse of alcohol which gave rise to it, nor to fully assume responsibility for leaving the children effectively unsupervised and at risk of harm.

Events following May 2012

Although the relationship continued for almost two more years, it deteriorated.
In July 2013 the father says there were times when he returned from work to find the mother heavily affected by alcohol with the child in her care. It has to be said that the father’s concern was not sufficient for him to end the relationship or cease work to care for the child himself.
In mid-July the parties and the child went away on holidays. At that time the child, aged three and a half, was apparently still in nappies. He resisted the father changing his nappy. The father insisted and held him firmly. The child became upset. The parties argued, the mother striking the father to the left side of the head. The mother accused the father of having thrown the child at a wall, which he denied.
The mother agrees that she was not present when the father was changing the child’s nappy, but assumed that this is what had happened. After the mother struck the father, he grabbed her by the front of her blouse with one hand and pushed her away at arms-length with the other, saying “never hit me again”.[8]
[8] Father’s Affidavit filed 18/03/2015, par 114

A couple of weeks later on 30 July 2013, there was another verbal episode between the parties. The child was present. The child stood up on the lounge facing the mother who was standing behind the lounge. He slapped her to the chest area and slapped her across the face.
The father was not challenged on his evidence that when this happened, although the mother said to the child “don’t do that”, she did not move but stood there allowing the child to continue to hit her. The father’s evidence is that the mother was very intoxicated on that occasion.[9]
[9] Father’s Affidavit filed 18/03/2015, pars 115-117
In the following month in similar circumstances, the child began intentionally running into his mother on his little bike.
On 6 September 2013 when the parties went to the home of the paternal uncle for a birthday dinner, the mother became so intoxicated that she was unable to speak. The father’s seven year old niece was present and the paternal family became upset. The father took the mother home and put her to bed.
In September 2013 the bar area in the garage of the family home was damaged. The father’s music collection was scattered and his sports trophies broken. The father challenged the mother as to what happened. She initially said that the child had climbed up and done the damage.
The father then threatened to smash a vase of the mother’s and she conceded that it was herself who had caused the damage by climbing on top of a cabinet to look for the spare car key in order to access the father’s car. The cabinet had fallen and its contents fell out and broke. The father said, and I accept, that he then broke the mother’s vase despite her confession.

Wedding of the maternal uncle in November 2013

On 23 November 2013 the parties and the child travelled to the wedding of the mother’s brother. It is uncontroverted that the mother missed the wedding due to being too intoxicated to get out of bed.
The maternal grandmother confirmed in her oral evidence the circumstances of the mother missing the wedding ceremony and reception due to intoxication. The maternal grandmother said this, “[the mother] gets very frightened and does not deal with lots of people well”.
The mother herself was very often defensive on this topic, sometimes angry and quite dramatic. She by no means accepted that the pattern of her drinking or even the two most significant incidents of May 2012 and November 2013 represented a legitimate concern either for the father or for the Court. Until the very conclusion of these proceedings, she continued to be critical of the father, but not of herself.

Events from 2014 onwards

In January 2014 the mother injected Evening Primrose Oil around her eyes and forehead. This resulted in swelling which did not respond to antibiotics.[10] The syringe which the mother used to inject herself was lying in the door of the fridge. The father disposed of it.
[10] Exhibit 10, Orange Flag F
On 29 January 2014 the father made inquiries about couples counselling. The mother became intensely distressed and told the father that she was upset at the thought of having to go. She was tearful and her breathing became affected. The father reassured her that she did not have to participate if she did not want to.[11] The father had discussed his fears and worries with his own father, who recommended couples counselling to try and save the relationship.
[11] Father’s Affidavit filed 18/03/2015, par 134
The paternal grandfather also gave evidence. He liked the mother, but felt she lacked confidence and was uncomfortable around other people. He himself had had the experience of an alcoholic father and was sympathetic to the mother’s difficulties.
Despite having seen the mother so drunk that she was unable to look after the child and herself, the paternal grandfather encouraged the father to stay in the relationship, “I honestly believe family is the most important thing and it is ideal for a child to have both a mother and a father.”[12]
[12] Paternal Grandfather’s Affidavit filed 05/06/2014, par 30
I accept that the father’s extended family is a close, affectionate, supportive one and did wish to assist and encourage the mother if she would allow it.

Events leading up to separation

By 22 February 2014 the father had decided to take action in his own way. He made a statement to police and an Application for an Apprehended Violence Order (“AVO”) was made on behalf of himself and the child.[13]
[13] Father’s Affidavit filed 18/03/2015, Annexures A and B
On 1 March 2014 the mother was served with the Application for the AVO.
The mother’s response was swift and definitive, it was also consistent with the father’s evidence that the mother would say to him, “I will take the child away and you won’t see him.”
On 3 March 2014 the father went to work in the usual way. At 4.00 pm on that day he received a text message from the maternal grandmother informing him that the mother and the child were at home with her. When he returned home he found that all of their clothes, personal possessions, the child’s toys and all relevant documents of the child were gone.
On the same day, 3 March 2014, the mother rang the father and asked him to retract his statement and drop the AVO, “[I]f you don’t drop it we will stay with mum … you will have to travel three hours to see [the child]”.[14] The father made inquiries and found he was unable to control the Application proceeding.
[14] Father’s Affidavit filed 18/03/2015, par 144
On 6 March 2014 both parties attended at court and an Interim AVO was made for the father and the child’s protection.
Nevertheless, the mother and child returned to the home of the maternal grandmother. The father sent a text asking to see the child. By arrangement between the maternal grandmother and the father, the father was able to speak to the child at 9.00 am each day for the next three weeks.
On the adjourned date of the AVO, the mother appeared represented by a barrister. The proceedings were adjourned for two months and the protective order for the father and the child was continued, despite the fact that the child was continuing to live with the mother and the father was unable to see him.
The maternal uncle directed the father to communicate only through him with the mother.
This series of events represented the end of the relationship. The mother and child have remained living with the maternal grandmother since the day she left the home, although reconciliation was attempted in 2014.

Mother reports to the sexual assault to police

On 6 March 2014 the mother made a report to police.[15] On that day she reported that on an evening in September 2013 the father had sexual intercourse with her without her consent. The following morning she had said to the father, “You raped me last night” and he had responded, “No I didn’t, there was no resistance”.
[15] Exhibit 8
The mother told police that she did not want any action taken, reporting the matter by way of an informal interview only. She did not provide a statement. The mother also stated at that time that she was hopeful that the relationship would continue with further counselling.
Police noted that the mother was due to attend that day in respect of the father’s AVO Application and made this note:
Police believe [the mother] may have made the allegation in reprisal against [the father] as indicated by the timing of reporting the matter the day before the pending AVO application against her, her lack of clarity regarding the time the offence took place, and because of the delay in reporting the matter to police.
There is some substance in the observation of the police.
In her oral evidence before me the mother was asked about this report:
Question:      When the father got an AVO you moved out?
Answer:         Yes.
Question:      You hadn’t been to police before that date?
Answer:         (in an aggressive tone) I don’t go and dob, I fix.
Question:      You made a complaint on 6 March 2014?
Answer:         Yes.
I infer that the mother, if not acting in reprisal, was at least putting something in place in support of her own position by making this report to police on an informal basis with no action sought.

First Application to the Court

On 11 April 2014 the father filed his Initiating Application seeking residence of the child with him. He also filed a Notice of Risk of Abuse raising concerns about the mother’s drinking, physical assaults on him by the mother and physical strikes by the child against the mother when she was violent towards the father in his presence.
The mother’s Response contained an application for the child to spend supervised time with the father.

Affidavit of the Mother

In her affidavit in support of that response, the final paragraph includes an allegation by the mother of the father having raped her on 20 July 2013:[16]
On 20 July 2013, [the father] was drunk. I fell asleep watching TV. I woke to find him top of me, forcing my head into the lounge, while he raped me. I did not consent, he was very aggressive and when he finished he continued watching TV as if nothing had happened. I have reported this to Police.
[16] Mother’s Affidavit filed 30/04/2014, par 104
The stated date was two months earlier than the date given to police. There was one allegation only of rape. This inconsistency makes it less probable that such an assault occurred. Further, the timing of the allegation being raised again makes it more probable that the allegation was being made tactically.
That affidavit set out some verbal arguments between the parties, mutually cruel and abusive. The mother was critical of the father’s parenting skills, recommending that he complete courses before being allowed to spend time with the child, but at its highest, the criticism was that the child had described the father as “a naughty man” and that the father was just like characters in the Mister Mean and Mister Grumpy series of children’s books.[17] She said the child was the happiest she had seen him in four years.
[17] Mother’s Affidavit filed 30/04/2014, par 77

April 2014 Orders

On 30 April 2014 orders were made for the child to live with the mother and spend time with the father for four hours once a week in the Suburb E area, with time to be supervised by the paternal grandmother. There was also provision for telephone contact on alternate week days at 8.30 in the morning. The parties were restrained from consuming alcohol in the presence of the child and for 12 hours prior to having time with the child. They were directed to undergo CDT and liver function tests and provide copies of the results to the other party’s solicitor at the earliest opportunity after testing.
The mother presented for the test on 20 June 2014, six weeks, rather than

14 days, after the order was made. The test was apparently within normal limits. There was a notation to the results as follows:[18]
Note that some alcohol abusers (approx 10% do not respond to excessive drinking with an elevated CDT. Gamma glutamyl transferase is complementary to CDT in assessing alcohol intake.
[18] Mother’s Affidavit filed 10/03/2015, Annexure A
Accordingly, I am unable, without expert evidence, to interpret the significance of that type of test, and only note it was conducted four weeks outside the time limit.
On 1 May 2014 the mother filed a Notice of Risk of Abuse, setting out allegations of the father having assaulted the child, engaging in coercive controlling conduct, having sexually assaulted the mother and threatening the mother and the child.
On 3 May 2014 the father’s first visit with the child took place, it having been two months since he had seen the child.
The father undertook a CDT and liver function test with the results falling within an acceptable range, noting the rider to the mother’s test is equally applicable.
On 22 May 2014 the Interim AVO was continued for a period of six months with a notation that if there were no breaches or alleged incidents, the application would be withdrawn and dismissed on 20 November 2014.
The father continued to spend time with the child in accordance with the

April 2014 orders.
On 19 June 2014 the parties and the child attended on a Child Inclusive Conference with a Family Consultant. Both parties advised the Family Consultant that they were intending to reconcile.
It was during these interviews that the mother retracted her allegation of rape as follows:[19]
Whilst there are issues of safety as reported by the mother, such as allegations that the father raped her during the relationship, the mother is now of the view that their communication was lacking and whilst she did not want to engage in having sexual relations that she may not have communicated this clearly to the father and as such he did not fully understand that she did not want to participate.
Both parents advised that they had spent the previous two weekends together and reported that the conflict between them had been resolved and communications has “vastly improved”.
[19] Child Inclusive Memorandum dated 19/06/2014
Interim Orders were made on that day by consent, with time between the child and the father progressing to alternate weekends from 25 July 2014. A Family Report was also ordered. Both parties agreed to obtain general counselling for alcohol issues; the Court noting that the mother had not undergone the CDT testing ordered at that time.
On 8 July 2014 the father filed an Amended Application seeking orders in the alternative as to where the child should live, effectively consenting to the child continuing to live with the mother if she would move back to the F Town area.
Between 31 July 2014 and 5 August 2014, in accordance with their expressed intention to reconcile, the mother and child stayed with the father at the former family home. The mother agreed in oral evidence that they had restored their sexual relationship during this visit. The mother was able to be quite explicit about how that had happened.

First allegation of the father assaulting the child

On 27 August 2014 the mother says that the child, for first time ever, made a disclosure to her of sexual assault by the father on him.
The mother refers to a ‘disclosure’ but in fact it was a response prompted by the mother’s questioning:[20]
Mother: Does Daddy still have baths and showers with you?
The child: Yes
Mother: Does Daddy wash you in the shower or the bath?
The child: No, he pulls my wee.
Mother:I observed that [the child] began to pull on his own penis motioning backwards and forwards.
[20] Mother’s Affidavit filed 18/09/2014, par 4
In her affidavit filed 18 September 2014 the mother then went on to set out various other complaints that the child had made between 27 August 2014 and the date of swearing on 17 September 2014.

The parties last weekend together in August 2014

Notably, what the mother did not include in her affidavit was that she and the child had spent the weekend together with the father, in the former family home, from 28 August 2014 to 31 August 2014.
Accordingly, on her own evidence, the child makes allegations on

27 August 2014, which she considers constitute sexual abuse. She then spends four days in the father’s home with the child, without raising with the father, to any extent, complaints made by the child. As had been their habit, the parties slept together in the same bed with the child in the bed on the mother’s side.
They went out to celebrate the mother’s birthday, bought two bottles of wine and drank together in celebration. This was in breach of Court orders.
The mother said that during that weekend, she had covertly taken the child into the bedroom and the bathroom and asked him whether this was the place where place where ‘daddy had pulled his wee’. When challenged that she might have set those conversations out in her affidavit, the mother said this, “I beg your pardon”. She sighed and gave Counsel for the father quite a quizzical look saying, “not all conversations are set out in my affidavit”. This was an understatement given that the whole of the four days’ stay with the father was omitted from that affidavit.
The mother contacted her brother during the course of the weekend and apparently there was a conversation about the possibility of the father having assaulted the child. The father was a witness to this conversation and the fact that the mother directed the child to come inside. Thereafter, that afternoon, the child became concerned and expressed his concern to the father that the father might be going to gaol soon.
Standing back from the events between separation in March 2014 and September 2014, there were a series of day time supervised visits between the father and the child, with the paternal grandmother present. There followed weekend visits where, from June 2014, the parties were together with the child and intending to reconcile.
In the mother’s second affidavit, she sets out a series of allegations that the child is reported to have made to her:[21]
… My dad is bad, he puts string in my mouth and it hurt, and it hurt my wee … Dad pulls my wee up and down. I told Dad ‘stop it dad! Stop pulling my wee’ … Dad tied orange string on my wee and he put the string in my mouth ... Dad wee’d sticky stuff on my shoulder. This happened in the garage where me and dad both had our pants off. Dad was sad and he walked away. We were in the garage. The doors were closed ... In the morning when I was in bed with Dad I said to dad, ‘don’t be naughty again dad’ and dad said ‘OK’.
[21] Filed 18/09/2014, pars 8-11
Subsequently, much more extensive allegations were reported.
After 31 August 2014, when the mother and child left the family home, the child did not see the father again, other than for Family Report Interviews in September 2014, until February 2015.

The first JIRT Interview

On 3 September 2014, the child was interviewed by the Joint Investigation Response Team (“JIRT”). I had the benefit of viewing the JIRT interview conducted on that day.[22]
[22] Exhibit 4
The child was interviewed in a skilful, professional and considered way. The child presented as a bright, thoughtful, responsive, and articulate little boy, decisive in response and joyful in the way he engaged with the questioning process. He was clear to say that there was nothing he did not like about the mother or the father.
The child could not identify any particular name for his penis, but he thought the mother would know what it was called. Later he said, “I know, wee”. He calmly replied in answer to the question whether anyone had touched his ‘wee’, “I think no one”.
He then went on in a conversational way to say:
My mum comes up to [name of town] to sleep with my Dad. I sleep in my Mum’s room. Mum stays overnight. Mum sleeps overnight in the middle like this with me on the side.
This statement was undoubtedly true, based on the evidence of both parties about what had occurred the weekend immediately prior to this interview.
The child was given every possible opportunity to identify whether there was anything worrying him, whether he had been hurt, touched or frightened in any way. To blandly report that no disclosures were made by the child is to understate the significance of the confident, outgoing presentation of the child as he denied any problems.
The father was also interviewed extensively and I had the benefit of watching that interview.[23] It was a voluntary interview and the father impressed as straight forward, somewhat embarrassed by details of adult sexual behaviour, but determined to examine his own thoughts and memories to ensure that all details of what had just passed and all details of his behaviour with the child and the mother were communicated.
[23] Exhibit 14
Unsurprisingly, the police told the father that the case was closed.
Over the following fortnight, there was no contact between the child and the father, either face to face, by telephone or in any other way.
On 17 September 2014 the mother made a statement to police.[24] In that statement, she referred to the first disclosure recorded in her affidavit. It is a different version of the conversation said to have taken placed between mother and child. In this account, the mother says she asked the child, “Does daddy wash your penis when you’re in the bath and shower”. The child said, “No”.
[24] Exhibit 5

This is remarkably different to “does Dad wash you in the shower or bath? No. He pulls my wee”.
The child is then reported by the mother to have gone on to say that the father was touching his penis in the bed. She described taking the child into the bedroom, in the covert way over the weekend, asking him specific leading questions such as, “is this where daddy pulls your where, how many times has this happened”, in more than one setting.
The mother goes on to say that more recently the child had told her “Daddy put rope in my mouth. It hurt … Daddy put his penis in my mouth” and that the child had described having a rope wrapped around his penis with the father “jerking” the rope and the child said that it hurt.

Second JIRT Interview

On 17 September 2014 the child was brought in for another interview.[25] I accept the submission of Counsel for the father that his demeanour was quite different. Again this was a careful and skilful interview.
[25] Exhibit 4
In the very preliminary stages of the interview, when the interviewer was identifying the notion of truth and lies, as had been done for the first interview, at the question “what’s the truth”, the child volunteered in quite a pressured way, “Dad pulls my wee and puts string in my mouth”.
When the child was asked whether that was something that had happened or something that someone had told him had happened, he said “someone told him”. When asked who told him, he said “my Mum”. The child also said the “police have to trap him [the father] in … he has to be in gaol”. He said that is something his mother had also told him.
The child went on to say that he liked seeing the father and described playing with Lego in the father’s presence. He volunteered the statement that the father was “being very naughty”. When asked how the father was being ‘naughty’, the child said, “I don’t know”. Another volunteered statement was, “mum said you don’t need to go there [the father’s home] it’s a yucky place” and sadly he said this about the father, “that’s why he [the father] doesn’t like me, because I don’t want to go there. Mum told me that”.
The JIRT team closed the case. The father says that police advised him that in their view, the child had been coached to make the above disclosures.
Having viewed the interview, there is certainly some substance in that opinion. The Family Consultant later commented that there is significance in a child unburdening themselves, in an interview process, with information that they have been told to repeat.
When the child was seen with the father, an extremely positive relationship was identified by the Family Consultant between the child and the father and the paternal grandparents.
I note the following observation. The mother was described as “resistant” to the father being allowed to spend time with the child because “[the mother] was worried the father would ‘put ideas’ into [the child’s] head”. The Family Consultant commented that given the father had not spent any time with the child since 30 August 2014, that she herself had had ample time to put ideas into his head. The mother is reported to have said, “I don’t do those sorts of things. I wouldn’t put ideas into his head”.[26]
[26] Family Report dated 26/09/2014, par 105
I infer that the mother knew and understood that it was possible for a parent to put ideas into a child’s head. It is probable that that is what has happened here. It is equally likely that the mother asked so many questions of the child, suggesting the answers in the questions she asked, that the child quickly, given his intelligence, took on what was expected of him and began to make statements accordingly.
On 22 September 2014 the mother filed an Application in a Case seeking for time between the child and the father to be suspended. She filed a further Notice of Child Abuse alleging that the child had disclosed to herself and the maternal grandmother “that the father sexually assaulted him on several occasions”.
The father filed a Response to an Application in a Case on 15 October 2014 seeking interim residence, with supervised time for the mother. The father filed a further Notice of Child Abuse himself, with particular reference to the police conclusion of the JIRT process and their advice to him that the child may have been coached by the mother to make false allegations.
On 27 October 2014 the Family Report was released. The recommendations were:[27]
·That the father to have sole parental responsibility for the decisions regarding the child and residence;
·That there be supervised time between the mother and the child;
·That the father consider taking significant time off work to settle the child in, in the event that an order was made for him to go to live with the father; and
·That the mother enter a long term drug and alcohol rehabilitation program as soon as possible (details of a recommended venue were given).
[27] Family Report dated 26/09/2014, pars 174-178
It was at that point that the matter was transferred to this Court.
In November 2014 the father completed a Parenting after Separation course. He also complied with the order made by consent in June 2014 that the parties obtain general counselling in relation to alcohol issues.
The child was not made available by the mother for any time with the father, despite the April 2014 Orders.
After the release of the Family Report, despite a particular request, there was no time between the child and the father on Christmas Day nor was a Christmas phone call agreed to. Likewise, the mother did not agree to any time between the child and the father on the child’s fifth birthday. The father was not advised of where the child would be attending school, nor invited to attend his first day at school.
On 23 January 2015, (incorrectly dated 23 January 2014), a Magellan Report was produced indicating that the Department would not be intervening. The advice through the Magellan Report was that allegations of possible sexual harm by the father on the child had not been substantiated.
The matter was closed and JIRT officers concluded that the child could be at risk of psychological harm for the following reasons:
… during the interview [the child] stated his mother told him to say the things he was saying. [The child] said his mother told him that his father does not like him. [The child] also said his mother drinks wine and consumed alcohol prior to coming to the second interview. This is in breach of the AVO that states she is not to consume alcohol 12 hours prior to having full care of [the child] and raises concerns about her ability to prioritise [the child’s] needs. JIRT discussed referring the family to NSW Health community services for a follow up.
In her oral evidence, the mother was questioned about the child’s statement that the mother had been drinking wine in the car before the second interview. The mother denied drinking wine in the car and said, “It was mineral water. He thought it was wine because it’s in a green bottle’.
Whatever the mother was drinking in the car, I infer that the child accurately reported that she was drinking from a green bottle in the car. I further infer that the mother knows that the child is familiar with the mother drinking wine from green bottles.
On 5 February 2015 the matter was listed for an expedited final hearing and Orders were made for supervised time to take place with an appropriate supervision service.
By the time of hearing, four visits had taken place and three had been reported on.[28] At that point, other than for the Family Report interviews, the father had not seen the child for six months.
[28] Exhibit 12
The child is reported to have not had “any difficulty re-engaging” with the father. He appeared happy and smiling. The father appeared to be sensitive to the child’s situation throughout. When the child told the father he felt sorry that he was not allowed to come over to his house, the father reassured him that that was okay and they could focus on having fun on the day. There was constant verbal interaction.
On the second visit, the mother was late without explanation.[29] When the supervision service contacted the mother, she advised that she had not yet left home as “she had a personal commitment”. The mother arrived with the child about 45 minutes late, for which she apologised. Surprisingly, the mother arrived 10 minutes early to collect the child and the father is reported to have appeared disappointed but allowed the child to leave without comment. The visit was again reported to be an enjoyable experience for the child. Despite the fact that a third of the three hour period was lost.
[29] Exhibit 12
On the third visit, the child, the father and supervisor were walking along a waterway observing activities on the boat ramp. The child expressed a wish to go fishing with the father but apologised to him and said he could not. It was an uneventfully happy visit.[30]
[30] Exhibit 12
The third affidavit of the mother[31] had many more examples of complaints by the child about the father. It concluded with an allegation that on

16 February 2015 the child had said to the mother, “After Dad put his wee in my mouth, silver white water started to come out, dad’s wee was so big I couldn’t talk, I choked”. Other less startling allegations were also made in the nature of sexual misconduct. At that point, the child had not been alone with the father for almost a year.
[31] Filed 10/03/2015, par 43
The mother also reported the child telling third parties that the father pushed him down the stairs, that the father is no longer hitting him, that he cried when he saw a man who he thought was his father, that he screamed out in his sleep that the father was hurting him, and other such statements.
At the commencement of the hearing on 23 March 2015 the mother’s position was that the child had been abused and was at risk of harm in the father’s care. By the conclusion of the hearing that position had changed entirely.

The Father

The father impressed as a rather reserved man, whose life has revolved around work, his family of origin and sporting and social activities, particularly cricket. I formed the impression that he had been surprised and delighted by the experience of becoming a father and has maintained a steady commitment to the child since he was born.
He maintained an unwavering focus on the needs of the child and had very clearly given detailed thought to how he would manage if the child did come to live with him. For instance, he has worked longer hours in order to accumulate extensive holiday and sick leave. Together with long-service leave, he has a total of 76 weeks available to him and clearly contemplates taking some months off to care for the child if he has residence.
The father has also met with the principal at C School East F Town, the school where he proposes to enrol the child. It is also the school where his cousins attend and he is especially close to his cousin J, who is of the same age. He has taken out health insurance with the child included as a member and an investment bond for future expenses.
The father has continued to see the psychologist, who he had been seeing since 2012, after the episode in May of that year, where the mother was hospitalised as a result of intoxication.
The father also will clearly be assisted by organisational and emotional support from his father. The paternal grandfather gave evidence, as did the paternal uncle. I accept that the paternal grandmother and paternal aunt also have close relationships with the father and the child and would do everything they could to assist with education, supervision and inclusion in important family events.
In relation to the mother’s drinking, the father was not unduly critical but rather bewildered. He is a man who, to use his own words, enjoys a drink, as do the other men in his family. He found it difficult to manage the secret problematic drinking of the mother, and indeed failed to do so. His attempts to support the mother by controlling the supply of alcohol to her clearly did not assist.
The father was genuinely hopeful in mid-2014 that he and the mother would reconcile and despite everything, those hopes did not appear to have been fully extinguished, although the father now described himself as naive to think that their problems could have been resolved.
The father made concessions. He conceded that his own drinking may have affected his relationship with the mother and with the child and that for his own health and well-being, he could give up drinking. That is a matter for him.
The father complied with drug testing, as was required of him, on every occasion. The mother failed to comply with the test requested in October and November 2014. Accordingly, the father’s response to the proposition put to him by Counsel for the mother that she had now given up alcohol, was “I don’t know” based on the absence of those test results, which might have been reassuring.
The father also conceded that he had been verbally abusive to the mother during arguments, on two occasions, calling her “fat” and “ugly”. He did not appear to be pleased with his own conduct as he made the concession.
The father’s past use of alcohol, as described by him in an honest way, would be of considerable concern if he resumed that pattern as the sole custodian of a five year old child. He said that in the summer he drank on Thursday and Friday after cricket, two after training then three more at home. This being a reference to full strength beer in cans and stubbies. On Saturday at cricket, he would have one stubby or two, then two more at home. He conceded that he had been intoxicated to the point of urinary incontinence in bed on two occasions during the relationship.
The father’s willingness to concede his drinking patterns, to concede the negative and embarrassing aspect of his drinking habit, and to honestly reflect on how that would need to change, provides comfort in the father exercising parental responsibility, although it is a restriction on his capacity. However, he revealed an openness in discussion of his problems of a personal nature, particularly with his father and a willingness to take advice, not only within the family, but from the counsellor that he continues to consult. I accept that he has modified his use of alcohol.
The father was cross-examined on the basis of his having been physically rough with the child, throwing him across the couch into the wall, hitting his head, getting rough with him changing his nappy, and also in relation to the alleged rape of the mother.
The father was taken in particular detail to the allegations said to have been made by the child, particularly orange rope being put in the child’s mouth, or around his penis.
I formed the strong impression that the father had turned all of the allegations over in his head, searching for any explanation and was able to find none. When he was pressed for an answer he said he thought that the mother was fearful of losing residence for the child and had encouraged the complaints. Nevertheless, he did not present as bitter or vengeful towards the mother.
The father said that if an order was made restraining him from drinking alcohol at all, he would abide by it. I accept he would.

The Paternal Grandfather

The paternal grandfather was a straight forward man who readily gave details of his own drinking, which was somewhat similar to the father’s. He agreed there was beer available in his home and he enjoyed sharing a stubby of beer with the father.
The paternal grandfather showed genuine concern when he spoke about having seen the child hitting the mother. He said he spoke to the father about it but did not speak to the mother because he did not want to intrude.
I accept the closing statement of the paternal grandfather that he would be there to help in any way he could.
During her oral evidence, the mother had said this, “[the paternal grandfather] is not fit enough to mind my son. He couldn’t do the job. He is unfit. He couldn’t jog if he was needed”.
As the paternal grandfather moved in and out of court, I observed that he did walk stiffly. That does not represent a restriction on his ability to assist with the child’s care. The child is now five and at school, is an intelligent and well organised child, with a loving relationship with the paternal grandfather. It is the quality of their relationship that would be of support and assistance.

The Paternal Uncle

In a way characteristic of the evidence given by the father and the paternal grandfather, the paternal uncle was a direct and straight-forward witness who made concessions. He agreed he had seen the father intoxicated, but commented on his being a responsible adult, obliged to be ready to drive if necessary.
He gave persuasive evidence about his commitment and that of the wider family to the father and to the child.
The paternal uncle has two children, aged 6 and 9, and whilst they enjoyed a good relationship with the subject child, he commented that it was his sister’s son, J, the same age as the subject child, who was the closest. He appeared to know of all the children very well.
The paternal uncle also raised his concern about the child’s aggression towards the mother, where he would strike out at her and the mother did not react. He said at first he discussed what he had seen with the father who remonstrated with the child at first, but then stopped, not knowing what else to do when the mother did not take action herself.
I accept that the paternal uncle and his wife, who run a business together and have done so for 17 years, are in a position to assist the father in any way that was needed and would be pleased to do so.

The Mother

The mother opened with an angry and defiant tone and throughout her evidence, had a tendency to at times be loud and forceful in her responses. She also, on more than occasion, exaggerated. For instance, she was asked to comment on the fact that the father had volunteered a concession that he had urinated in the bed on two occasions. She reacted with considerable anger, “there were many, many occasions, at least 30 times”. This was new evidence which had not appeared in her affidavit and was a spontaneous exaggeration in my view.
The mother used the court hearing link due to having a hearing impairment and tinnitus. She said that she had a hearing aid but preferred not to wear it. She attributed her hearing impairment to hereditary hearing loss from her father and stress. She had last worn her hearing aid five years ago. It was puzzling evidence. The maternal grandmother confirmed that she had paid for the hearing aid for the mother five years ago, but that the mother did not use it. Either the hearing aid was unnecessary for the actual level of hearing impairment or the mother prefers to struggle without the use of it.
The mother gave evidence about having suffered trauma in her childhood and presently suffering from post-traumatic stress disorder (“PTSD”). She spoke of being forced to have oral sex with an older child in her childhood. She also spoke of a sexually intrusive incident involving another older child, a girl, when she was about four years of age, under the table in the family home. She said she was unsure whether she had been abused by her paternal grandfather. She did not know but thought it was a possibility based on her mother telling her that her paternal grandfather used to hand out lollies to children in the neighbourhood, which was “a big no no at that time”.
The mother referred to her father being aggressive, yelling a lot, but with no physical discipline. It was hard to discern to what extent the mother was focused on her childhood as a way of avoiding the issues in the case, in particular, abuse of alcohol, which affected her capacity to care for the child.
The mother’s evidence about her counselling after the May 2012 event undermined my confidence in her evidence. Despite agreeing that the notes recorded her statements at the time that she was happy in her family life and with the father, in her oral evidence, she said that she had not been happy at that time but needed more time to get to know the counsellor, that she did not have time during the sessions with him to get to what “the father had been doing to me and [the child]”.

The father obtained an AVO for the protection of himself and the child in February 2014. Nevertheless, the child has lived with the mother since.
The mother has alleged that the father threw the child across the room. The evidence does not support such a finding
There have been abusive, verbal exchanges between the parties. I accept that the mother has probably struck the father on more than one occasion, not sufficiently to hurt him nor did her actions make him make him fearful, but the child has become upset and has physically attacked the mother. That is something that needs the attention of both parents and perhaps some expert advice.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

Urged on the Court by the Independent Children’s Lawyer was a proposal that there be the following order:[47]
·That the child live with the father and have supervised time with the mother for 12 months and during that period, if the mother undertook a course of therapy with a clinical psychologist to address the issues related to her symptoms of PTSD and a course of counselling with an accredited drug and alcohol counsellor to address the issues related to her use of alcohol and the mother provided the father written confirmation from those professionals that they had read copies of these Orders and Reasons for judgment and the father was satisfied with the mother’s progress and presentation, then the child could spend time and have telephone communication with the mother on an unsupervised basis.
[47] Exhibit 13
I do not propose to make those orders. The evidence is that the mother has not voluntarily sought advice, nor does she consider that she should.
It is not a matter for the Court to compel or manipulate a party into taking up a course of therapy for the following reasons.
Therapy undertaken without a commitment to undertaking it is likely to be unsuccessful. Even if it were to be undertaken whole heartedly, it may not be effective. The mother has not accepted that there is any need for her to undertake intensive counselling in relation to alcohol abuse and she is in entitled to hold that view about her own use of alcohol. Compelling one or both of the parties to attend further counselling is the Court directing the parties as to how they live their lives.
The case must be decided on the evidence before me.
The evidence supports a finding that the mother abuses alcohol to her detriment and adversely to the interests of the child. The evidence also supports the mother having the view that she does not have a problem with her use of alcohol and that free from the father, there will be no difficulty which needs addressing.
The father himself uses alcohol at a level which the Family Consultant described as ‘not optimal’ at weekends. There is evidence that the father has reflected on his drinking and the need for his pattern to change and has already taken steps through consistent attendance on a counsellor to review his use of alcohol and would reduce it or eliminate it if the child was in his sole care.
It may be that a further application will be made in future if there is a change of circumstances for either party. The risk of the orders proposed is that the mother may pay lip service to undertaking the courses recommended and the father would be put in a position of arbitrator over whether or not the child should spend more time with the mother. That can occur naturally by the parties developing a little more confidence in each other and agreeing on a variation of the orders that is always open to all parties.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

The mother did not provide evidence of how long she intended to remain living with the maternal grandmother. The maternal grandmother said that it was her belief that the mother would sooner or later find “a little place of her own”, presumably, with the child.
Prior to her relationship with the father, the mother was living and working in the Region I area of Sydney.
The Orders I make are based on the evidence before me, which is that the father will continue to live in the F Town area and the mother will continue to live in a township west of the Region H.

Conclusion

The post-separation arrangement for the child to live with the mother has not promoted his best interests. She has withheld him from the father for contact and communication. She has failed to focus on his need for a relationship with both of his parents and for other family members who matter to him.
The mother has promoted allegations which I have found to be baseless. She encouraged, enacted and helped the child to practice making the statements that he did in the second JIRT interview after a fortnight where he had been in nobody else’s care but hers.
The mother has not accepted responsibility for the consequences of drinking at dangerous levels, episodically, and she has been critical of the father for his drinking and there is some substance in her criticism. The father needs to modify his drinking pattern. The comfort in the evidence is that the father has understood that himself and has maintained unwavering commitment to the child.
I am confident that the father understands the need for the child to have a relationship with the mother as long as that can happen safely and that he will have the active support of his family in assisting the child to maintain that relationship.
On that basis, Orders have been made for the child to live with the father and for the father to have sole parental responsibility but with defined steps for advising of major decisions to be taken with a view to taking the mother’s perspective into account.
There is an Order for the father to be able to enrol the child at the school which had been contemplated prior to separation. The child’s cousins also attends that school and there are both educational and social benefits accordingly.
Provision has been made for the child to spend time and communicate with the mother through a contact centre for a period of 12 months. There will be more than one centre to minimise the amount of travelling that the child himself needs to do.
Accordingly, visits will be both in the F Town area, where the child will live, on one weekend day per month and the Suburb E area, which represents a manageable trip of about two hours for the child, on one weekend day per month.
Thereafter, the parties may agree on a way forward but failing agreement for one full day on two occasions per calendar month, supervised by an external supervision service, which accompanies parents and children on enjoyable activities in the community.
There is leave for the mother to provide these Orders and Reasons for judgment and the Family Report to a psychiatrist or clinical psychologist that she might consult in accordance with the recommendation of the Family Consultant or otherwise in relation to her mental health and alcohol abuse.
There are Orders for the father to provide a copy of the Orders to the principal of the school in which he enrols the child.
The Orders are to be explained to the child by the Family Consultant in the presence of the Independent Children’s Lawyer so he can be reassured about the arrangements that have been put in place for him.
This will also allow a transition from the mother to the father in a way which will ensure that the child is not exposed to conflict between the parents and the emotional distress of the mother.
Orders have been made accordingly.

I certify that the preceding three hundred and eighteen (318) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9 April 2015.

Associate:

Date: 9 April 2015

[2015] FamCA 241

9 April 2015

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