LOPEMAN & BRANDON

FAMILY COURT OF AUSTRALIA

LOPEMAN & BRANDON

[2012] FamCA 368

FAMILY LAW – CHILDREN – Parental responsibility – Magellan matter – allegations that the father's friend and neighbour sexually abused the child – where the father did not believe the allegations and did not believe the alleged perpetrator posed a risk to the child – whether the father is able to appropriately protect the child from harm – whether the father’s disbelief about the allegations and inability to protect the child expose the child to unacceptable risk – whether parents can cooperate and co-parent – where there is a lack of trust in the parental relationship – finding that it is not in the child’s best interests to apply presumption of equal shared parental responsibility – presumption rebutted.

FAMILY LAW – CHILDREN – with whom a child spends time – whether child should spend time with the father at the father’s residence – where the alleged perpetrator resides in the same building as the father – whether the father can protect the child from harm – child shall spend time with the father at the father’s home once the father moves away from his current residence – frequency of the child’s time with the father – where the father has failed to spend time with the child in accordance with orders in the past.

Family Law Act 1975 (Cth) ss 4, 60CC, 61B, 61DA, 65DAA

Aldridge & Keaton (2009) FLC 93-421
B & B (1988) FLC 91-978
Briginshaw v Briginshaw (1938) 60 CLR 336
M & M (1988) 166 CLR 69
Marvel v Marvel (2010) 43 Fam LR 348

APPLICANT:

Ms Lopeman

RESPONDENT:

Mr Brandon

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

7585

2007

DATE DELIVERED:

22 May 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

1 and 2 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms E Boyle

SOLICITOR FOR THE APPLICANT:

Paltos Briggs Family Lawyers

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr C Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All previous orders are discharged.
Ms Lopeman (“the mother”) will have sole parental responsibility of the child H Brandon, born … July 2006 (“the child”), subject to the qualifications set out hereafter:
(a)If the mother determines that the child should attend a school different from R School, then she will consult with Mr Brandon (“the father”) and will appropriately give weight to his views about where the child should go to school. A consideration in this regard will be the financing of any fees required to be paid by the child’s school and, in particular, who will be responsible for the payment of those school fees. If, however, after appropriate and proper consultation, the parties are unable to agree, then the mother may determine where the child will attend school.
(b)That the mother provide all authorities and directions necessary for all medical or allied practitioners including dentists, doctors, psychologists or any other health care professional, upon whom the child may attend to provide all information and material held by them to the father about any treatment, consultation, diagnosis or prognosis that may be made about the child.
(c)That, in an emergency, the mother notify the father as soon as practicable of any serious illness or operative treatment that the child may be obliged to undergo and will permit the father to attend at the hospital or other medical institution where the child may be from time to time to see the child.
(d)Wherever possible, the mother will consult with the father about any serious operative or other medical treatment required by the child and will involve the father in the decision-making about that treatment if it is reasonably possible to do so. The mother will carefully consider the father’s opinion and the father should be permitted to express that opinion clearly and without any hindrance. If the parents are unable to agree, then ultimately the mother may make the decision subject to any contra-decision made by this court.
The child shall live with the mother.
The child shall spend time with the father as follows:
(a)From the conclusion of school until 7:00pm each Monday, provided that the father take the child to any extra-curricular sporting activity he is enrolled to attend during that period; and
(b)Upon the father moving from his current residence at Suburb M address in New South Wales to a new residential address on a long-term basis and providing to the mother documentation of such a move, from the conclusion of school until 7:00pm each Friday; and
(c) On the child’s birthday as follows:
(i)For two hours if the child’s birthday falls on a weekday; and
(ii)For four hours if the child’s birthday falls on a weekend
at times agreed by the parties in writing;
(d)For four hours on Christmas Day by agreement and, failing agreement, from 2:00pm until 6:00pm; and
(e)For four hours on Father’s Day from 9:00am until 1:00pm or as otherwise agreed by the parties in writing.
In addition to Order 4 above, if the child is enrolled to attend an extra-curricular sporting activity on another weeknight after school, the mother will invite the father to take the child to that activity on a weekly basis, provided that he father return the child to the mother’s residence by 6:00pm.
For the purposes of implementing Orders 4 and 5 above:
(a)The father is to collect the child at the commencement of the father’s time with the child from R School or from the mother’s residence on occasions where the father is spending time with the child on a day when the child is not at school; and
(b)The father is to deliver the child to the mother’s residence at the conclusion of the father’s time with the child.
The child be personally supervised by the father and the father be responsible for the child’s care on each occasion the child spends time with him pursuant to Orders 4 and 5.
Orders 4 and 5 continue without suspension during the school holiday periods, provided that if the mother wishes to take the child away from Sydney on holidays she provides to the father in writing not less than 21 days notice of her intention to travel out of Sydney with the child together with her proposal for make-up time. The mother shall not travel with the child away from Sydney on more than three occasions in any 12 month period.
The father provide to the mother in writing not less than five days notice of his unavailability to spend time with the child pursuant to Orders 4 and 5. If that unavailability falls over any public holiday, the father provide to the mother in writing not less than 14 days notice.
If the father fails to spend time with the child on three or more occasions in any six week period without giving notice to the mother pursuant to Order 9, then Orders 4 and 5 are suspended.
The father be and is hereby restrained from:
(a) Taking the child to his current residence; and
(b)Bringing the child into contact with Mr G, or within 100 metres of Mr G’s residence at Suburb M address:
(i)If the child is inadvertently brought into contact with Mr G, the father shall immediately remove the child from Mr G’s presence; and
(ii)Telephone the mother to advise what has occurred.
(c)Allowing the child to communicate with Mr G through any means including, but not limited to, telephone, SMS, email, Skype, post and Facebook; and
(d)Discussing or making any reference to Mr G to or in the presence or hearing of the child.
The mother will permit the child to spend time with the father and the father’s extended family after the parties have consulted together and agreed upon reasonable arrangements for this to happen. Ultimately, the arrangements about this will be the subject of the mother’s determination, but she will act reasonably in this regard and, so far as possible, facilitate the arrangements for the child to see his extended paternal family.
The mother may enrol the child in extra-curricular activities but will not do so at times which may interfere with the time that the child would otherwise be spending with his father, unless the father has given his consent prior to the child’s enrolment. In this regard, the father will so far as possible ensure that the child does attend appropriate extra-curricular activities and he, as the child’s father, is involved in such activities to the extent that it is reasonably possible for him to do so.
The mother will forthwith do all acts and sign all documents to authorise any school that the child is attending to communicate directly with the father, including communicating directly with the father about any school event, and to provide to the father, at the father’s expense, all reports, notices and other communications relating to the child emanating from the school.
The father will be entitled to attend, not necessarily at the same time unless the parties otherwise agree, parent-teacher interviews at the same time as the mother and may attend other school events in which the child is engaged.
Each party shall keep the other informed, at all times, of their current residential address, residential telephone number, mobile telephone number and email address.
Each party shall notify the other of any serious illness suffered by the child or any emergency admission to hospital or injury suffered by the child while he is in the first-mentioned party’s care as soon as practicable.
If the parents agree that the child will benefit from attending upon a child psychologist, the Independent Children’s Lawyer, in consultation with Associate Professor O, nominate the names of three child psychologists for the child to attend upon and, if the parents cannot agree on the child psychologist within 14 days, the Independent Children’s Lawyer is to nominate the child psychologist for the child to attend upon.
(a)Both parties share equally in the cost of the child attending upon the child psychologist as referred to in Order 18 above.
(b)The Independent Children’s Lawyer provide the child psychologist with the following documents
(i)A copy of the Final Orders and Reasons for Judgment; and
(ii)A copy of Associate Professor O’s report.
(c)Both parties be at liberty to attend upon the child psychologist at the discretion of the child psychologist.
Neither party denigrate or criticise the other party in the presence or hearing of the child.
Both parties are restrained from discussing these court proceedings with the child or within hearing of the child.
Upon a request from the Independent Children’s Lawyer, the mother will facilitate the child’s attending upon the Independent Children’s Lawyer for the purpose of the Independent Children’s Lawyer explaining the Orders to the child.
The Independent Children’s Lawyer’s application for costs is dismissed.

Notation

The Court notes that the child presently attends swimming lessons at 6:00pm each Monday evening at the … Swim School ….

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lopeman & Brandon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 7585 of 2011

Ms Lopeman

Applicant

And

Mr Brandon

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings between the applicant mother Ms Lopeman, 39 years old, and the respondent father Mr Brandon, almost 46 years old at the time of final hearing, about the proper parenting orders for their child H (“the child”), who is almost six years of age.
The dispute between the parents arose as a result of allegations that the father’s neighbour, Mr G, was paying inappropriate attention to the child and touched the child’s genitals when he took the child to the bathroom. While there are other issues, the focal points of the dispute between the parties, it seems to me, is the father’s ability to protect the child from harm and the ability of the parties to co-parent their child.

Orders Sought

The orders sought by the mother are set out in her Minute of Orders Sought. Among other things, the mother sought that:
a)She have sole parental responsibility for the child;
b)The child live with her;
c)The child spend time with the father:
i)Each Monday from after school until 7:00pm, provided the father take the child to any extra-curricular activity he is enrolled to attend;
ii)For two hours on the child’s birthday if that day falls on a weekday and for four hours on the child’s birthday if it falls on a weekend;
iii)For four hours on Christmas Day; and
iv)For four hours on Father’s Day;
d)If the child is enrolled to attend an additional extra-curricular activity on a weeknight other than Monday, the mother will invite the father to take the child to that activity provided he returns the child to the mother’s residence by 6:00pm.
e)To facilitate the child’s time with the father, the father will collect the child from the child’s school or from the mother’s home, if time is scheduled on a day where the child is not at school, and return him to the mother’s home at the conclusion of time with the father.
f)The father is restrained from:
v)Taking the child to his residence in Suburb M;
vi)Taking the child within 100 metres of Mr G;
vii)Taking the child to communicate with Mr G through any means including SMS, email, Skype, post and Facebook;
viii)Discussing or making any reference to Mr G to or in the presence of the child.
g)The mother notify the father of various school events and the mother will authorise the child’s school to communicate directly with the father and provide information about the child’s schooling to him.
The mother’s Minute of Orders Sought are set out in full as Annexure 1 to these Reasons.
The mother relied upon the following affidavits in support of her application:
a)Her affidavit filed on 26 March 2012;
b)Affidavit by the maternal grandmother filed on 3 April 2012;
c)Affidavit by Ms A filed on 31 March 2011; and
d)Affidavit by Ms P filed on 24 April 2012.
All of these affidavits, save that of Ms A, were filed out of time, and leave was granted to the mother to rely on them at final hearing.
After some discussion between the parties and the Independent Children’s Lawyer on the first day of final hearing, the father indicated that he agreed to Orders 1, 3 to 6[1], 8 to 11, 13 and 14. In relation to Order 2, the father opposed the mother’s application for sole parental responsibility and sought an order for equal shared parental responsibility. While the father agreed to time with the child as set out by the mother, he sought, in addition, that he be able to spend time with the child from after school until 7:00pm each Friday at his residence. Order 7 of the mother’s Minute of Orders Sought relates to the injunctions set out at paragraph 3(f) of these Reasons. The father opposed the injunctions as sought by the mother. Instead, the father proposed that orders be imposed enjoining him from bringing the child into contact with Mr G, and, should the child inadvertently be brought into contact with Mr G, the father would remove the child from such contact immediately and inform the mother about the incident. The mother did not agree to these suggestions by the father.
[1] It is noted that the father only agreed to order 5 proposed by the mother on the basis that this would be in addition to, not in lieu of, his time with the child on Monday evenings and the time he proposes he spend with the child on Friday evenings.
Order 12 as sought by the mother requires her to authorise the child’s treating health professionals to provide to the father all information and material relevant to the child. The father seeks that “health professionals” be defined to include dentists, doctors and psychologists. In relation to Order 15, the father agrees to this order on the basis that the mother does not travel outside of Sydney with the child on more than three occasions in any 12 month period. The mother seeks, in Order 16, that the father provide her with not less than 14 days written notice if he is not available to spend time with the child. The father proposed that he provide not less than five days written notice, but if time is to occur on a public holiday, then not less than 14 days written notice will be provided. The mother agreed to all of these proposals by the father.
The father relied upon only his affidavit filed 18 May 2011 in support of his application. The reasons for this are discussed below.
The Independent Children’s Lawyer did not provide a Minute of Orders Sought until the final day of hearing. In relation to the issues in dispute, the Independent Children’s Lawyer sought that:
a)There be equal shared parental responsibility;
b)The child spend time with the father as set out in the mother’s Minute of Orders, and also that the child spend time with the father from after school to 7:00pm on Fridays at the father’s home once the father moves from his “current residence to a new residential address”. This qualification means that the possibility of the child coming into contact with Mr G is reduced;
c)The father be restrained from taking the child to his current Suburb M residence, from bringing the child into contact with Mr G or within 100 metres of Mr G’s residence in Suburb M. In the event the child inadvertently comes into contact with Mr G, the father will immediately remove the child from Mr G’s presence and advise the mother about what occurred.
The Independent Children’s Lawyer sought a suite of other orders, including that the child attend on a child psychologist, such psychologist to be selected from three nominated jointly by the Independent Children’s Lawyer and the Single Expert, Professor O; and that the mother provide the father with proposal for make up time when she travels with the child outside of Sydney. The orders proposed by the Independent Children’s Lawyer are set out in full as Annexure 2 to these Reasons.
Orders 8 to 12, 17 to 19, 21 and 22 sought by the Independent Children’s Lawyer are largely identical to orders sought by the mother. All parties agreed to those orders.

Background

The parties married in December 2000 and separated in March 2007.[2]
[2] Mother’s affidavit, [6] and [[9]; Father’s affidavit, [4].
There were previous proceedings in the Family Court and those were resolved by consent orders made on 4 August 2009. Those consent orders provided, inter alia, for equal shared parental responsibility between the parties; for the child to live with the mother; for the child to spend time with the father each Monday and Friday commencing with time from 3:30pm to 7:00pm and progressing to time from 2:45pm to 7:30pm, as well as on special occasions; and that the father be responsible for picking the child up and dropping the child off at the commencement and conclusion of time with the child.
The child spent time with the father in accordance with the orders of August 2009, but it is alleged that there were occasions when the father cancelled his time with the child. I will discuss this in more detail below.
In January 2010, the mother alleges that she became aware, through the father, that his neighbour and friend Mr G waited for the father and the child to arrive at the father’s unit complex, accompanied them to the father’s unit and accompanied them from the father’s unit to the father’s car at the end of the father’s time with the child. Mr G also bought the child presents.[3] The father agreed in cross-examination that Mr G did do these things.
[3] Mother’s affidavit, [39].

The mother’s view was that Mr G’s attentions to the child were “not normal behaviour” and she communicated that view to the father.[4] The mother discussed her views with and sought advice from the child’s teachers, Ms Y and Ms N, and the NSW Department of Family and Community Services (“the Department”), each of whom informed the mother that the behaviour did not sound “normal” and sounded like “grooming”.[5]
[4] Mother’s affidavit, [40].
[5] Mother’s affidavit, [40], [45]-[46], [52]-[54] and [58].
The mother raised her concerns with the father throughout 2010. The father’s responses varied. On one occasion, the father agreed that he would tell Mr G he could not see the child anymore but statements made by the child indicated that he had contact with Mr G, despite the father’s assurance.[6] The child continued to see Mr G throughout 2010. On other occasions, the father informed the mother that he would allow Mr G to see the child whenever he wished, and that he had told Mr G to sue the mother for “slander”.[7] The father did not accept that Mr G’s behaviour was grooming and thought the mother’s allegations were “bullshit”.[8] I will discuss this in more detail later in these Reasons.
[6] Mother’s affidavit, [41]-[42].
[7] Mother’s affidavit, [43]-[44] and [61]-[62].
[8] Mother’s affidavit, [68].
In early 2011, the child began to wet the bed every night. This eased to three or four times a week over a three month period.[9] In early 2011 the child’s behaviour became more aggressive, his moods were “erratic” and he became increasingly angry, kicking, punching and “lashing out” at the mother. This behaviour was observed by the mother and also by Ms N. Ms N informed the mother that the child had “become withdrawn but at the same time more aggressive, and then crying, bursting into tears for no reason.”[10]
[9] Mother’s affidavit, [134].
[10] Mother’s affidavit, [125]-[128].
On 24 February 2011, the child reportedly said to the mother “I want to stop seeing [Mr G] but Daddy makes me.” Concerned for the child’s safety, the mother notified the Department about what the child had said to her. She was advised by the Department that without proof “something [had] happened” they were unable to take action. When the mother advised the father about her notification to the Department, the father allegedly responded that she, the child’s school and the Department were “all wrong” and that “[Mr G] can continue to see [the child]. I’m not doing anything. I know [Mr G], you do not.”[11] The mother continued to raise her concerns about Mr G with the father throughout 2011. I will discuss the father’s responses later in these reasons.
[11] Mother’s affidavit, [129]-[131].
In light of the child’s recent aggressive behaviour, the mother asked the child on 2 March 2011 whether he was “worried about something”. The child responded that he was worried about “daddy”. The child elaborated by saying “[The father] really scares me. I do not want to see him anymore. Will you tell daddy I do not want to live with him and I do not want to see [Mr G] anymore? Why doesn’t he protect me like you do?”.[12]
[12] Mother’s affidavit, [139].
On 12 March 2011, the mother overheard a telephone conversation between the child and her mother. She heard the child say “Please do not tell mummy, we are not allowed to tell Mummy” and “[Mr G] says it’s okay he will always love me.” Later that same day, the maternal grandmother relayed to the mother more details of her conversation with the child:[13]
…I am worried. [The child] told me this morning that [the father] made him tell [Mr G] that he couldn’t see him anymore. Apparently [Mr G] said that he loved him and that they could keep their secrets jar. He mumbled some other things I could not hear and then said not to tell you about his special secrets.
[13] Mother’s affidavit, [152]-[153].
Concerned by the combination of the child’s bed-wetting, mood swings, his opposition to spending time with the father and the child’s statements to the maternal grandmother, the mother took the child to see a psychologist, Ms A.[14]
[14] Mother’s affidavit, [154].
After seeing the child, Ms A reported the following to the mother:[15]
This is going to be hard for you to hear but [the child] has indicated to me that something has happened with [Mr G] and he has touched his genitals. [The child] said [Mr G] took him to the toilet and touched his genitals.
…
[The child] said that [the father] was present. It was not clear what he meant. I could not keep asking questions. There is a process I have to follow. I will have to notify [the Department]. …
[The child] indicated that [Mr G] watches him bath and he does not like it. He did not recall any photographs being taken of him.
[15] Mother’s affidavit, [155]-[161].
On 17 February 2011, the mother took the child to be interviewed by the Joint Investigative Response Team (“JIRT”) at their request. The child made no disclosures about Mr G at this interview.[16]
[16] Mother’s affidavit, [170]-[172].
The mother commenced these proceedings in the Family Court on 29 March 2011.
On 13 April 2011, this matter was designated a Magellan matter, the father’s time with the child pursuant to orders of August 2009 was suspended, the mother agreed she would not cause the child to be examined by Ms A or any other child psychologist pending further order, and a single expert witness was appointed.[17]
[17] Orders 1, 3, 5 and 7 of 13 April 2011.
In January 2012, the father’s solicitors filed a Notice of Ceasing to Act, and from that point, the father represented himself in these proceedings.
The matter came before Registrar George for case management ex parte on 7 February 2012. On that date, the Registrar made directions to prepare the matter for final hearing. Directions were made for the parties to file and serve completed Parenting Questionnaires on or before 21 February 2012; to exchange and lodge a brief chronology of relevant events by 28 February 2012; to file and serve the evidence they seek to rely upon by 16 March 2012; to file an Outline of Case document at least two working days prior to the commencement of trial; and to notify each other party of any objections to affidavit material. Neither party complied with the Registrar’s orders.
On 23 March 2012, after the date for filing of affidavit material had elapsed, the Registrar conducted a case management hearing “as the father had not filed any material despite the passing of various filing dates.”[18] It was noted by the Registrar that the father did not attend this case management hearing, but did respond to an email sent after the event and advised that he would attend to filing as required “shortly.” The father was also given leave to add his sister as a witness in his case.[19] At this point, the mother had filed her Parenting Questionnaire and trial affidavit, but had done so after the time stipulated by the Registrar.
[18] Benchsheet of 23 March 2012, paragrapb 1.
[19] Benchsheet of 23 March 2012, paragraphs 2 and 3.
On 3 April, the Registrar conducted a case management hearing, ex parte. By this date, the father still had not filed any affidavits for the final hearing and had not replied to email correspondence from the Registrar regarding this.[20]
[20] Benchsheet of 3 April 2012, paragraph 1.
On 4 April 2012, the Registrar conducted another case management hearing, ex parte and noted that the father advised his affidavit would be filed by 13 April 2012.[21]
[21] Benchsheet of 4 April 2012.
By 17 April 2012, the father still had not filed affidavit material in preparation for the final hearing, and the matter was listed before me on 19 April 2012 for directions. On that occasion, the father stated that he would not file any further affidavit material, and would rely only on his Response filed on 18 May 2011 and his affidavit filed on the same date.
The matter came before me for final hearing on 1 May 2012.

Relevant Law in Parenting cases

Under the Family Law Act 1975 (Cth) (“the Act”), I am obliged, when making a parenting order, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[22] In this regard, “parental responsibility” means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”[23] Hence, equal shared parental responsibility is a presumption that relates solely to the allocation of parental responsibility, as defined in section 61B, and is not a presumption about the amount of time a child spends with each parent[24].
[22] Family Law Act 1975 (Cth), s 61DA(1).
[23] Family Law Act 1975 (Cth), s 61B.
[24] Family Law Act 1975 (Cth), s 61DA(1).
That presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who is a member of the parent’s family or engaged in family violence.[25] “Family violence” is defined in the Act as actual or threatened conduct towards a member of a person’s family or their property which causes that person or any other person in their family to reasonably fear for or to be reasonably apprehensive about his or her personal wellbeing or safety.[26]
[25] Family Law Act 1975 (Cth), s 61DA(2).
[26] Family Law Act 1975 (Cth), s 4.
The presumption of equal shared parental responsibility may also be rebutted if the Court is satisfied that equal shared parental responsibility would not be in the child’s best interests.[27]
[27] Family Law Act 1975 (Cth), s 61DA(4).
In determining what is in the child’s best interests, I must have regard to the factors set out in s 60CC of the Act. The factors in s 60CC are divided by the Act into “primary considerations”[28] and “additional considerations”[29].
[28] Family Law Act 1975, s 60CC(2).
[29] Family Law Act 1975, s 60CC(3).
In Aldridge & Keaton,[30] the Full Court of the Family Court (Bryant CJ, Boland & Crisford JJ) held that the Act does not (at 83,825):
…direct any particular weighting or priority to any provision in [Part VII] (although we note the division of the s 60CC factors into primary considerations and additional considerations. It is clear however from the [Explanatory Memorandum] that while the use of the word “primary” is intended to stress the importance of the consideration in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary considerations.
[30] Aldridge & Keaton (2009) FLC 93-421.
In Marvel & Marvel the Full Court of the Family Court (Faulks DCJ, Boland & Stevenson JJ) acknowledged the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility. The Full Court stated:[31]
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
[31] Marvel & Marvel (2010) 43 Fam LR 348, [103].
If the presumption of equal shared parental responsibility does apply, I am obliged then to consider whether the child should spend equal time with each of the parents[32] or substantial and significant time as defined in the Act.[33] In determining whether a child should spend equal or substantial and significant time with each parent, I must have regard to the best interests of the child as the paramount consideration and also have regard to the reasonable practicability of the child spending such time with each parent.[34]
[32] Family Law Act 1975 (Cth), s 65DAA(1) and 65DAA(2)
[33] Family Law At 1975 (Cth), s 65DAA(3).
[34] Family Law Act 1975 (Cth), s 65DAA(5).
Before turning to a consideration of what might be in the best interests of the child, I make the following preliminary comments in relation to equal shared parental responsibility in this case.
In this matter, there is disagreement between the parents about whether there should be equal shared parental responsibility. I note further that the Independent Children’s Lawyer supports the father’s position that there should be equal shared parental responsibility.
It is not suggested in this case that the father has engaged in family violence. Nor is it suggested, otherwise than in Ms A’s affidavit that he was present when another person may have been engaged in abuse of the child[35],or that he himself has been engaged in abuse as such. The mother does not assert that the father did or is likely, personally, to engage in abuse of the child.
[35] Affidavit of Ms A, Annexure “B”, 3.
However, as stated above in paragraph 37, the presumption of equal shared parental responsibility may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
It is unnecessary for me in the context of this matter to make a finding about the applicability of s 61DA(2)(a) or (b) because of the view that I take that, having considered the best interests of the child, the presumption is rebutted.
This involves on my part a more detailed consideration of the provisions of s 60CC of the Act. This section divides the determination of the child’s best interests into two sections. The first deals with what are referred to as “primary considerations” and these are nominated as:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations are nominated to which I will refer in due course.

Best Interests of the Child

Primary Considerations

S 60CC(2)(a)

In this matter, the parents are substantially in agreement that the child should continue to have a meaningful relationship with both parents. There is no dispute that the child would benefit from having a meaningful relationship with his mother. She has been his primary carer since birth and she has a loving relationship with him.[36]
[36] Single Expert’s report, 30.
The child’s relationship with the father is more complicated. Observations of the child’s interaction with the father indicate that the child enjoys spending time with the father. The Single Expert observed:[37]
… [The child] was very happy to see his father and immediately jumped in his lap; he was clearly affectionate and interested.
[The father] was responsive to [the child] but it was apparent that he does not have a good familiarity with the child; he was surprised at some of the things that [the child] was able to do with drawing. They had an easy interaction. [The child] was relaxed and happy and [the father] was quite boisterous and interactive.
We continued this part of the assessment for about half an hour. There were no difficulties; [the child] enjoyed the time with his father and [the father] was responsive and appropriate.
[37] Single Expert’s report, 26.
Similar observations were made by Ms P, who supervised the child’s time with the father, in her affidavit:
8.… after some time together [the father] talked to [the child] about his school and the activities he enjoyed doing. [The child] began to relax… [The child] and [the father] went on a number of rides and appeared to enjoy their time together. …
9.I said to [the child] in the absence of [the father]:
“Did you have fun today? Are you happy to see Daddy again next week?”
[The child] said:
“Yes, I had fun. I want to see Daddy next week.”
…
12.On 23 July 2011 [the child] greeted [the father] with a hug when he arrived. [The father] said to [the child]:
“How about we go to the movies and see Mr Popper Penguins today?”
[The child] agreed and appeared excited to go to the cinema with [the father]. [The father] bought [the child] [an] ice-cream and some popcorn and [the child] appeared to enjoy his treats and the movie. After the movie [the father] bought [the child] pancakes for lunch.
Based on these observations, it is my opinion that the child takes pleasure in spending time with the father and would benefit from having a meaningful relationship with him. However, this is subject to concerns raised about the father’s ability to protect the child from harm and his understanding of the child’s needs which I discuss in due course.
The parents are agreed that the child should live primarily with the mother and the father’s occupation precludes his having substantial time with the child.

S 60CC(2)(b)

As mentioned previously, allegations have been made that Mr G paid an unusual amount of attention to and engaged in inappropriate conduct towards the child. Those allegations are outlined at paragraphs 21 to 24 of these Reasons. Ms A also outlines the allegations in her report:[38]
After some play and general conversation, [Mr G] was raised as an open question. Tell me about daddy’s friend [Mr G]. [The child] reported that “Daddy likes him but mummy doesn’t like him”. “He’s a baddie”. “I go to the toilet upstairs and he touches my doodie. I fee super angry and I want him to stop”. When asked where his father was when this happened, [the child] reported that his father was present. When asked about bath time, [the child] reported that his father and [Mr G] were present and “watching me” and that he felt “disappointed”. When asked for another word for disappointed, he reported “grumpy”.
[38] Affidavit of Ms A, Annexure “B”, 3.
The only disclosures that have been made in relation to the conduct of Mr G were made to Ms A. I draw no inference from the fact that the child has not made disclosures to JIRT or, indeed, to the Single Expert. The child was obviously aware of the effect that his disclosures to Ms A had had on everyone associated with him[39]. He may have perceived a need to protect his parents and was “blaming himself” for causing a problem between the parents. This, the Single Expert described, was “a huge burden on a little boy”. These things would suggest that the child is unwilling to, in effect, cause any more trouble for anyone.
[39] Single Expert’s report, 27.
The evidence in relation to this matter is such that I could not be satisfied on the requisite standard of the balance of probabilities prescribed by the Evidence Act 1995 (Cth), which incorporates the prescriptions of the High Court in Briginshaw v Briginshaw[40], that Mr G had engaged in abuse of the child. In coming to this conclusion, I am conscious of the fact that the father denies on his oath that he was present, as appeared to be asserted in one of the disclosures made by the child. It is not the mother’s case that the father engaged in child abuse. I was impressed in his evidence by the fact that the father appeared to be genuinely horrified at the suggestion that he would permit anyone to abuse his child, and it is also not the mother’s case that the father knowingly permitted another person to abuse the child.
[40] (1938) 60 CLR 336.
The concern is the father’s ability to protect the child from harm. I mentioned earlier in these Reasons that I would explore in further detail the father’s response when the mother raised her concerns about Mr G with him. I turn to that issue now.

The mother first raised her concerns with the father in January 2010 and told the father that she did not want the child to spend any more time with Mr G. The father agreed and said, “I’ll tell [Mr G] that he cannot see [the child] anymore.” However, in April 2010, after returning from his time with the father, the child told the mother, “I saw [Mr G] tonight.” When asked by the mother when this occurred, the child replied, “All the time, he gives me lots of toys.”[41]
[41] Mother’s affidavit, [42].
This prompted the mother to again raise her concerns with the father on 13 April 2010:[42]
“[The child] said he saw [Mr G] yesterday. You told me that you would tell [Mr G] to stay away. I am really worried [father’s name]. I do not want him near [the child].”
44.[The father] shouted at me in an aggressive tone words to the effect:
“I’ve told [Mr G] to sue you for slander and I am going to give evidence against you. I’ve also told [Mr G] that he can see [the child] whenever he wants to. You’re fucked in the head. He is a teacher. You’re just trying to get back at me. I am going to tell him to go for everything you have”
[42] Mother’s affidavit, [43] and [44].
On 7 May 2010, the child again reported to the mother that he “saw [Mr G] at Daddy’s house.” And again, the mother voiced her apprehension to the father:
“…I talked to [the child’s] school and explained the situation, they also felt it sounded a little unusual. They offered for you to come in and talk to them about it, perhaps someone independent can help. “
62.[The father] became angry and in a raised voice said: “I can’t believe you told them this crap. They don’t know [Mr G]. This is slander.”
…
“[Mr G] is a teacher, he has to have all the security checks done and works with kids all day. He is fine. He is just a lonely old gay guy. He has even offered to come and talk to you about it. Will you just drop it?”
…
67.[The mother] replied:
“Please then, just find out some facts on the internet about paedophilia. Do some research for yourself… All I ask is that you look into it. …
68.[The father] then said: “I am not wasting my time, I already know this is bullshit.”
On 17 May 2010, the child returned from his time with the father and told the mother that Mr G had bought him a toy dog.[43] The following conversation took place between the parents:[44]
“[Father’s name] can’t you see this is not normal, this meeting him, wanting to play with him and buying him presents all the time for no reason.”
75.[The father] replied: “This is your problem…, not his. There is something wrong with you. … I have told [Mr [G]] he can see [thje child] whenever he wants, and as much as he wants. If you don’t drop this he will sue you.”
[43] Mother’s affidavit, [71].
[44] Mother’s affidavit, [74]-[75].
In the same conversation, the father told the mother “Do not be ridiculous” when she asked him not to leave the child alone with Mr G.
The father’s responses continued in the same vein in June 2010 when the subject of Mr G’s contact with the child was raised again:[45]
[The mother]: “Shane there is something not right here, [Mr [G]] is buying [the child] all these presents, and spending this time with him, none of my neighbours are like that, it is not right. Why can’t you see that?”
[The father] shouted at [the mother]:
“You are fucked, why will you not just drop this? I have told [Mr G] he can see [the child] whenever he wants. He is a teacher just get over it.”
[45] Mother’s affidavit, [79].
In November 2010, the child reported that he had seen Mr G again and in December 2010, the child brought home a koala doll that Mr G had given to him.[46] On two occasions shortly afterwards, once in December 2010 and again in January 2011, the mother asked the father not to leave the child alone with Mr G. The father agreed on both occasions so the mother would “stop on about it.”[47] However, on 29 January 2011, the maternal grandmother reported the following to the mother after speaking with the child on the telephone, “[The child] said that [the father] made him sit on the couch next to [Mr G]and that it make him feel uncomfortable and that he did not like it. …” This report would indicate that the father had allowed the child to see Mr [G], even after he promised the mother he would not allow this to occur.
[46] Mother’s affidavit, [106] and [107].
[47] Mother’s affidavit, [111]-[121].
In February 2011, around the time the mother noticed the child’s behaviour to become more aggressive and after child told the mother he wanted to stop seeing Mr [G][48], the mother spoke again to the father:[49]
“If you continue to let [Mr G] see [the child], I will be taking further action. I have telephoned [the Department]. It really depends on how you respond to this where it will lead to. What are your intentions?”
[The father] said to me in an aggressive tone:
“You are all wrong. The school, [the Department], everybody. [Mr G] can continue to see [the child]. I’m not doing anything. I know [Mr G], you do not.
[48] Mother’s affidavit, [129].
[49] Mother’s affidavit, [131].
On 15 March, the child made disclosures to Ms A.
On 22 March 2011, the mother received a text message from the father which said, “Wanted to let you know I spoke to [Mr G]. Said he’s going to fight this. Think he’s going for a defamation suit. Thought I would warn you might be long and expensive.”[50]
[50] Mother’s affidavit, [182].
Counsel for the mother took the father to some of the conversations which have been outlined above. Although the father denies that he lost his temper in the child’s presence, he conceded that it was “possible” he said the things which the mother asserted he had said. I accept that conversations between the parents occurred as the mother asserted.
It is clear from these conversations that the father did not believe Mr G posed any threat to the child. Indeed, that was the father’s position even during the trial. His responses to the mother’s concerns oscillated between denying the mother’s concerns had any foundation and accusing the mother of “slander”, and agreeing to prevent Mr G from seeing the child but failing to follow through with that promise. In cross-examination, the father accepted that the mother was sincere in her concerns about Mr G, however, the father admitted that he failed to accede to her requests for the child to be kept away from Mr G.[51] He elaborated later by saying if the child wanted to stop by and say hello to Mr G on his way up to the father’s unit, the father saw no reason why he should stop the child from doing so.[52] He also acknowledged that the mother’s anxiety about Mr G would affect the child, but he failed to do anything to assuage the mother’s worries.[53]
[51] Final hearing, 1 May 2012, 2:35pm.
[52] Final hearing, 2 May 2012, approximately 10:42am.
[53] Final hearing, 1 May 2012, approximately 2:48pm.
The parties’ evidence of the somewhat unusual interest of Mr G in the child, and his conduct as agreed between them in relation to the child, would reasonably rouse suspicions in the mind of a parent. The father’s inability to comprehend, apparently, the mother’s concern in this regard and his own persistence that Mr G did not pose a threat to the child, and his continued support for Mr G, even in circumstances where he might at least have acknowledged that it was possible something untoward had happened lead me to an uncomfortable conclusion that, in so far as association with Mr G is concerned, there may be an unacceptable risk for the safety of the child if the child were to be allowed to come into a situation with his father in which Mr G might be present.
I note in this regard the father’s proposals that he not bring the child into contact with Mr G and that, if this should occur accidentally, that he would immediately notify the mother and remove the child from Mr G’s presence. These arrangements, which may or may not have been reasonable initially, arrived on the first day of the final hearing and did not inspire me with any confidence about the father’s arrangements for three reasons. First, the father was never prepared to acknowledge that there might be some basis for the mother’s concerns and even during the hearing before me, the father was asserting his disbelief that Mr G might even possibly have done something to the child. Second, the father’s previous promises to the mother that he would stop the child from having contact with Mr G were empty; he assured the mother he would keep Mr G from the child, but the child returned from time with the father to report that he had seen Mr G and that Mr G had given him gifts. Third, the father’s evidence appeared to me to be that he would now no longer allow the child to spend time with Mr G because he and Mr G had a “falling out”. This falling out, as I understand it, arose because Mr G had failed to pursue what the father perceives to be the “false allegations” made against him by the mother. If this is the father’s reason for now not allowing the child to have contact with Mr G, I regard it as a selfish motivation which is not at all child-focused.
In accordance with the judgments of the High Court in B & B[54] and M & M[55], even if I am unable to make a determination about whether child abuse has occurred, it is necessary for me to ensure that any orders I make about the time that the child might spend with either parent would be such as not to impose any unacceptable risk of abuse on the child.
[54] (1988) FLC 91-978.
[55] (1988) 166 CLR 69.
In the context of s 60CC(2)(b) and in relation to the presumption of equal shared parental responsibility, it seems to me that the presumption should not apply particularly in relation to the question of parental responsibility about the exposure that the child might have to Mr G.
I note that the mother, in her interview with the Single Expert, made allegations that the father was “abusive and intimidating and threatening” during their relationship and that he made “very menacing threats” which caused the mother to believe he would kill her.[56] However, there is no evidence that violence between the parties is a live issue. They are now separated and do not spend time together and I do not regard this as a factor which influences my decision about parenting orders for the child.
[56] Single Expert’s report, 10.

Additional Considerations

In considering the factors set out in s 60CC(3), it is appropriate to note that the differences between the parents about the final orders that should be made were relatively small. Putting to one side the question of joint shared parental responsibility, the major issue related to whether the child should be permitted to spend time with the father at his home which is in the same block of units as the home of Mr G. The mother indicated that if the father should move, then she was happy that the child should go to the father’s home and spend time with him there and, in fact, thought this would be preferable to the arrangements that would otherwise require the child to spend time with his father in public places. The father did not indicate an immediate willingness to move, notwithstanding that he was in rented accommodation and had no lease obligations, his rented apartment being owned by a colleague at his work[57]; and notwithstanding that his doing so would have, in fact, meant that both he and the mother were in agreement about the orders relating to the child and, in particular, about the fact that the child might spend time with him at his place of residence on two nights a week. The father stated that he had previously contemplated moving from his current residence, not because this would alleviate the mother’s concerns about Mr G or because he felt it would be in the child’s best interests, but because the owner of his apartment was contemplating selling the apartment. He added that because the owner no longer wanted to sell, the father saw no reason to move.[58]
[57] Final hearing, 2 May 2012, approximately 12:40pm.
[58] Final hearing, 2 May 2012, approximately 12:28pm.
I should note that both parents were in agreement that on another night during the week, if the child were to become involved in some extra-curricular activity, the father might take the child to that activity. The father, however, sought that this should be in addition to the two nights he otherwise would have with the child, whereas the mother saw it as being substitution for the Friday night time.

S 60CC(3)(a)

It is difficult to form any firm conclusions about the child’s views about the various arrangements proposed for him by his parents. I am satisfied, on the evidence of the Single Expert outlined above, that the child would like to spend time with his father. I think it is more likely than not that the child does not wish to spend time with Mr G given his repeated expressions to that effect to the mother[59] and his disclosure to the maternal grandmother that “[Mr G] made me feel uncomfortable… Because he sat close to me and I did not want to talk to him but Daddy made me talk to him.” Even if the child did wish to spend time with Mr G, I would not consider it appropriate that he does so for two reasons. First, I was unable to make finding that Mr G had not acted inappropriately towards the child. Second, allowing the child to spend time with Mr G would cause the mother to be anxious again, and this, as conceded by the father, would be detrimental for the child. At least, so far as their formal positions before the Court is concerned, neither parent suggests that he should spend time with Mr G. The child’s age and the circumstances of this matter would suggest that I should not place overwhelming reliance upon his views except to acknowledge that it is important that his relationship with his father should continue and that it is important that his father should be encouraged to continue that relationship for the benefit of the child.
[59] Mother’s affidavit, [129], [133], and [139].

S 60CC(b)

The child is acknowledged to have a close and loving relationship with his mother. There is nothing in the evidence to suggest that the mother’s relationship with the child is anything other than caring, loving and appropriately protective. In cross-examination, the father stated it was his belief that the child made the allegations because he was coached by the mother to say those things, or because he was inappropriately touched by a child at school, or the allegations were a result of the child’s vivid imagination.[60] This assertion was firmly rejected by the Single Expert. The Single Expert’s opinion was children who had been coached by one parent would make further disclosures of abuse in the presence of that parent. However, the child made disclosures to Ms A, the maternal grandmother, but did not make any further disclosures to the mother.[61] I accept the Single Expert’s opinion that the mother did not coach the child to make allegations against Mr G.
[60] Final hearing, 2 May 2012, approximately 12:32pm.
[61] Final hearing, 1 May 2012, approximately 3:10pm.
I have dealt with the child’s relationship with his father above. Both parents acknowledge that it is important that the child has a relationship with both parents and that he has time with his father.
I have expressed a reservation already, and repeat, my concerns that the father has, at least in some of his statements, appeared to place his friendship with Mr G above what might be regarded as an ultimately safe position for the child.
The removal of an opportunity for Mr G to be involved may remove this as an element of concern in relation to the father.

S 60CC(3)(c)

I have already commented about each parents’ attitude to the child’s having a relationship with the other parent. Each of them agrees that the child should have a relationship with the other.
The father does not seek to limit the child’s time with the mother.
The mother’s past behaviour has always demonstrated a willingness to facilitate time between the child and the father. She continued to facilitate this even though the father did not accede to her requests to stop the child from seeing Mr G, and allowed the child to see Mr G in spite of his assurances to the mother that this would not occur. She initiated telephone calls to the father on behalf of the child after the August 2009 orders had been suspended.[62]
[62] Mother’s affidavit, [185], [189], [190] and [195].

S 60CC(3)(d)

The orders proposed by both the mother and the father are similar to the orders of August 2009. They do not involve significant change to the regime of time which the child previously spent with the father. The biggest difference between the orders of August 2009 and the orders proposed by the mother is that the child is now precluded from spending time with the father at his home. My recollection is the Single Expert gave evidence that spending time in a home environment is important to the development of the child’s relationship with a parent and that always spending time in a public place is not ideal. However, I am not satisfied that the effect of this is outweighed by the risk posed to the child by the possibility of coming into contact with Mr G.

S 60CC(3)(e)

There are practical difficulties associated with the arrangements proposed by the mother for the time that the child will spend with his father. In commenting about this, I note that neither parent suggests there should be a different arrangement for the Monday night. For the child to spend time with his father without any option of returning to his father’s home limits the opportunity for the child to develop a more meaningful relationship with his father because of the requirement, under at least the agreed portion of the orders, that he would be spending time effectively in public places. Such arrangements are practically difficult in any event during the winter or, for that matter, during high summer when it would be important for the child, if possible, to be in the secure environment of the father’s home (absent, of course, Mr G). But my views in relation to this issue are expressed above, and I have nothing further to add.
The father felt, as a matter of fairness, that the mother should share some of the transport in relation to the child. However, this seemed to be inspired by his sense of fairness – as between the adults. He suggested bizarrely that if the mother shared the transport it would involve less travel for his son. I can only conclude this suggestion was made up on the run. The father should be responsible for transport. The mother otherwise has the responsibility of primary care of the child, and the additional travelling by the father is appropriate. It would be a diminished burden if the father were to move closer to the mother.
Otherwise, there are no real practical difficulties associated with the time that the child might spend with his father.

S 60CC(3)(f)

There is no question about the mother’s capacity to provide for the child’s needs.[63]
[63] Single Expert’s report, 32.
While the father is able to provide for the child’s physical needs, there is some question about his capacity to provide for the child’s emotional needs. The father has been alleged to have lost control of his anger in the child’s presence. On one occasion, the father took the child to attend a soccer class. On his return the child said to the mother:
391.“…Daddy was angry with me.”
I said to [the child]: “No sweetie. He was not angry at you.”
[The child] replied:
“No Mummy, he told me I was not good enough and I should do better. I was trying really hard. He also told me I could not see [Mr G] anymore because of you.”
392.… “Mummy, I do not want to go to soccer anymore because Daddy will get angry with me again. He got so angry Mummy that he yelled at two little boys because they were throwing sand…”
In cross-examination, the father denied that he was angry and said that he was protecting the child from the boys who were throwing sand. Later, the father said it was not possible that the child would perceive his reaction differently (that is, as angry) from the father’s perception.[64] This demonstrates a severe lack of insight on the father’s part as to how his actions might affect the child.
[64] Final hearing, 2 May 2012, approximately 10:24am and 10:40am.

S 60CC(g)

There are no particular cultural issues associated with either parent which would bear upon my determination of what constitutes the child’s best interests.

S 60CC(3)(h)

The child is not Aboriginal or a Torres Strait Islander.

S 60CC(3)(i)

I have already commented about the question of the attitude of each of the parents to the child and their responsibilities. I am satisfied that leaving aside the matters that I have referred to, and except for one other matter to which I will now refer, that each of them has an understanding of the importance of their responsibilities as parents.
Notwithstanding his expressions of commitment to spending time with and developing a relationship with the child, the father has in the past neglected to avail himself of all of the opportunities. This has generated an inconvenience but, more importantly, created disappointment in the child and at least, inferentially, created a situation in which the child might feel that his father does not want to spend time with him.
The mother asserts that in the past, the father has told the child he would return the child’s phone call, but failed to do so. The mother outlines eight occasions where this occurred. The child either left a voice mail message which the father did not respond to, or the father assured the child he would call back “later” or “tomorrow” but failed to do so.[65] The mother adds the following:[66]
197.By this time, [the child] was becoming reluctant to telephone [the father] and was very anxious, refusing to leave a message if [the father] did not answer. …he said to me on many occasions “But what if Daddy doesn’t call back?”.
[65] Mother’s affidavit, [187]-[196].
[66] Mother’s affidavit, [197].
In cross-examination, the father’s explanation for this was that he did not check his voice mail messages and so was unaware of when the child called him.[67] That may provide an explanation in respect of those occasions where the child is alleged to have left a voice-mail message, but it does not explain the occasions where the father explicitly told the child he would call him back. The father acknowledged that his failure to return the child’s calls would upset the child.
[67] Final hearing, 2 May 2012, approximately 10:50am.
Assertions were also made that the father failed to pick the child up from the child’s school when he was scheduled to do so.[68] There was some dispute about whether the father missed 40 per cent of his time with the child or less, however, I do not think the amount of time missed is the most significant issue. What is important is that the child was upset when the father did not spend time with him as scheduled. The mother states in her affidavit:
383.[The child] was aware by 2010 that [the father] was supposed to pick him up on Mondays and Fridays. In November 2010 [the child] was upset the night before one of [the father’s] scheduled times with [the child]. … “What if Daddy does not come again?”…
[68] Mother’s affidavit, [380] and Exhibit “M2”.
The father’s explanations for why he had not spent time with the child when he was able to do so were not satisfactory. While it is easy to understand the frustrations that the father must feel in the circumstances in which he and the child find themselves, it is very hard to understand how he would not have availed himself of every possible opportunity if his concerns for the child were as pronounced as he would have me believe.
This lack of ability on behalf of the father to convey his commitment to the child was reflected on in a slightly different context by the single expert. She commented that the past behaviour of the father might well be the best indicator of the future.[69] She commented there was quite a risk that the father would convey to the child that any restrictions on his time with the child would be the mother’s doing. She also commented that the father was unlikely to pick up on clues as to the child’s thought processes and was more likely than not to rationalise them after the event. She also commented at about the same time somewhat poignantly that, at this stage, the child was quite vulnerable to the loss of his father at this point.[70]
[69] Final hearing, 2 May 2012, approximately 3:50pm.
[70] Final hearing, 2 May 2012, approximately 4:00pm
The Single Expert agreed that it was more important for the child to have regular and consistent time with the father rather than frequent time that was inconsistent.[71] To ensure that the child does not continue to be disappointed, an order is made that the father must give the mother written notice of unavailability to spend time with the child, and that if the father misses three or more occasions with the child in any six week period without notice to the mother, then his time with the child is suspended.
[71] Final hearing, 1 May 2012, approximately 3:48pm.
For her part, I am satisfied the mother behaved reasonably, responsibly and protectively in relation to the child notwithstanding the contrary opinions expressed by the father and notwithstanding his expressed views that there was no risk to the child from Mr G. The mother did not behave in a rash manner. Upon hearing from the father about Mr G, she consulted the child’s teachers, the Department and the police to seek advice about the situation. As discussed, above, the mother did not terminate the relationship between the child and the father notwithstanding the child’s father’s assurances that he would keep the child away from Mr G when apparently he had no intention of doing so.
This aspect of the evidence would lead me to conclude that it is appropriate that the mother should have primary responsibility about a number of areas in relation to the child, that the child should, in accordance with his own wishes, be able to spend some time with his father in a safe environment and that that safe environment should be regulated by something other than the father’s own assertions about his ability to protect the child and to prevent him from being exposed to any harm. The evidence also suggests that it is important in this context that the father should feel encouraged to develop his relationship with the child and to develop his own skills in understanding the child’s concerns and in appreciating the fact that his actions may have an effect on the child even if that effect is not intended by him (the father).

S 60CC(3)(j)

There are no relevant violence issues in relation to this matter. Certainly as between the parents or as between the parents and the child.

S 60CC(3)(k)

There are no relevant family violence orders in place.

S 60CC(3)(l)

The Act provides, somewhat whimsically in my opinion, that I should take account of the fact that 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”. If I were to make orders that the child might spend time with his father at his father’s current home, relying on the father’s professed willingness and ability to protect the child, that might give rise to further proceedings if a dispute were to arise about the child’s contact with Mr G. For the reasons I have suggested above, I am not willing to do that. Alternatively, if I were to make orders that allowed for the child to spend time with his father after his father had moved from his current residence (in effect as a self-executing order), this would accord with the sensible concessions made by the mother in this regard and would obviate the need for the father to return to Court to get some supplementary order. I believe it is appropriate to reflect such arrangements in my orders as suggested by the Independent Children’s Lawyer and supported by the mother.

S 60CC(4)

This section requires that I take account of what the parents have actually done, in the sense of having taken or failed to take opportunities to participate in decisions about the child and to spend time and communicate with him. I have already made comment about this matter above in relation to the father’s apparent inability to comprehend the effect that his failure to attend for some of the nominated times that he might spend with the child would have on the child. I do not regard his conduct as disqualifying of the father, but rather a matter appropriate for my comment in the hope that he will in the future take note of the advice given to him indirectly through the Single Expert and in relation to these proceedings. In the end, this is not a case about either of the parents, it is a case about the child and what is best for him.

Parental Responsibility

The father seeks an involvement or, in effect, a power of veto in relation to some matters relating to the child’s long-term welfare. These parents have not been able to comfortably agree or cooperate on a number of matters. In my opinion, it is inappropriate to apply the presumption of equal shared parental responsibility in most cases where parents are significantly in dispute and cannot reasonably sit down and discuss in a business-like, if not an affectionate and loving way, arrangements about their children. On the evidence, the parents have been in considerable conflict over the matter of Mr G. On many occasions the mother reasonably requested that the father stop Mr G from spending time with the child, but she was met with either anger or empty promises that he would comply with her requests. The father saw no need for him to assist the mother in her requests, if only to maintain a cooperative parenting relationship. Their parenting relationship is now very fractured and, for the mother’s part, severely lacking in trust. The evidence of the Single Expert is that it is difficult for the parties to agree on much and the father has difficulty if he thinks the mother is trying to dictate terms to him.[72] In these circumstances, and for the reasons above, it would not be in the child’s best interests for the parents to have equal shared parental responsibility. I find that the presumption is rebutted.
[72] Final hearing, 1 May 2012, approximately 2:43pm.
Parental responsibility requires on the part of both parents a willingness to accept obligations and duties as well as to assert and demand rights. An order for sole parental responsibility with one parent does not, depending in each case upon the circumstances, absolve that parent of the obligation and the duty to consult with and to listen to the opinions of the other about significant matters relating to the child. Equally, even if the father were to have equal shared parental responsibility, that would not permit him simply to assert his authority and to frustrate the views that might be expressed by the mother about matters relating to the child or, indeed, to assert that he has the right to control those matters.
I indicated to the parties and to the legal representatives during the course of the hearing that it seems to that it is not the case that it is either equal shared parental responsibility or sole parental responsibility. It is open to the parents and to the Court to allocate sole parental responsibility in relation to some matters relating to the child and leave other arrangements, either joint or consultative, between the parents about others.
One matter commonly the subject of consideration in these areas is the school that a child attends. The child has been attending the same school, both in a pre-school environment and now as a school, for some time and the mother proposes that he should continue there for the rest of his education. The father seeks to be involved if there is to be a change of that school. The father would prefer that the child did not attend that school, but the child is continuing to attend there. I am not sure to what extent the father’s opposition is dictated by monetary considerations but it does seem to me that the mother’s position in relation to the school, unopposed in principle by the father, ought to prevail. However, if there were to be a change proposed by the mother, then it seems appropriate to me that the father should be consulted about which school the child should change to. In this context, consultation should not be perfunctory or disregarding. It should, as the name “consultation” suggests involve a consideration of the father’s views and a genuine attempt to accommodate them in the decision-making process.
Having expressed that opinion, however, it seems to me that the mother should ultimately be the one to make the decision as past experience would suggest the father is unlikely to be a financial contributor to the schooling arrangements. If the disagreement between the parents is significantly marked, no doubt it will bring about an application to the Court for a specific order relating to this matter. I would regard that as undesirable but, nevertheless, possibly the inevitable consequence of the parties’ inability, at least at present, to cooperate in determining what is best for the child.
Generally speaking, notwithstanding this was a point of contention between the parties, there were very few areas in which there appeared to be any significant difference between them about matters relating to the child’s long-term welfare. For example, religion was not an issue and it did not appear that there were significant questions relating to discipline or association with extended family. The last-mentioned issue is complicated by the fact that the father’s family is predominantly interstate which generates some practical and financial difficulties but not insuperable ones in the long run.
It appears, at least in the submissions made by the Independent Children’s Lawyer, that there could be some point of contention about extra-curricular activities and experience would suggest that it is not unknown for such activities to interfere with the time that a non-primary parent (without using that in any technical sense) might otherwise spend with the child.
It would be reasonable to impose a limitation on the mother’s sole parental responsibility which would prohibit her engaging the child in extra-curricular activities which would interfere with the time that the child would otherwise spend with his father unless she had consulted with and obtained approval of the father prior to enrolling him. For his part, the father would of course be sensible to permit the child’s physical, cultural and intellectual development to be as wide as possible and seek to participate in those activities with him. Wisdom, understanding, tolerance and love are important aspects of parenthood and parenting responsibility.

Costs of the Independent Children’s Lawyer

The Independent Children’s Lawyer sought an order for his costs in relation to the proceedings. He presented his case in relation to this matter with both appropriate vigour and eloquence.
This is a matter in which neither party has very much in the way of money, I was greatly assisted by the involvement of the Independent Children’s Lawyer who provided sound and sensible approach to most of the matters in issue between the parties. I accept that in appropriate cases it is important that parties should contribute to the costs of this assistance to the Court. I note also that the amount claimed by the Independent Children’s Lawyer as costs was, by any measure, moderate. I accept that the Convention on the Rights of the Child does provide that Australia as a party to the Convention has an obligation to provide, in appropriate cases, the assistance of someone representing the interests of the child. While that is the case, it is not the case that this must necessarily be without any expense to the parents.
Nevertheless, in the circumstances of this matter it seems to me to be reasonable to say that the parents had engaged in a dispute which was centred on the best interests of the child. Neither pursued a position which was unreasonable or obstructive and, while I indicated my appreciation for the assistance of the Independent Children’s Lawyer, it seems to me that the cost of that assistance should be borne by society generally through the funding to the Legal Aid Office rather than by the parents individually. The application for costs in that regard is dismissed.
For these reasons, I make the orders identified at the start of this judgment.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 22 May 2012.

Legal Associate:

Date: 22 May 2012

Annexures

Annexure 1

1.That all previous Orders be discharged.
2.That the mother have the sole parental responsibility for [H Brandon] (born … July 2006) (“[the child]”).
3.That [the child] live with the mother.
4.That [the child] spend time with the father as follows:
4.1    From after school until 7pm each Monday provided that he take [the child] to any extracurricular sporting activity he is enrolled to attend during that period.
4.2    For two hours on [the child’s] birthday in the event that [the child’s] birthday falls on a weekday and 4 hours in the event that [the child’s] birthday falls on a weekend at times agreed by the parties in writing.
4.3    For four hours on Christmas Day by agreement and failing agreement from 2pm until 6pm.
4.4    For four hours on Father’s Day from 9am until 1pm or as otherwise agreed by the parties in writing.
5That in the event [the child] is enrolled to attend an additional extracurricular sporting activity on another weeknight after school the mother will invite the father to take [the child] to that activity on a weekly basis provided that the father return [the child] to the mother’s residence by 6pm.
6That for the purposes of implementing Orders 4 and 5 hereof the father is to collect [the child] at the commencement of time with [the child] from [R School] or the mother’s residence where time is to be spent on a day which [the child] is not at school and deliver him to the mother’s residence at the conclusion of time.
7That the father be restrained from:
7.1    Taking [the child] to his residence at [Suburb M address].
7.2    Taking [the child] within 100m of Mr [G].
7.3    Allowing [the child] to communicate with Mr [G] through any means including but not limited to telephone, SMS, email, Skype, post and Facebook.
7.4    Discussing or making any reference to Mr [G]to or in the presence or hearing of [the child].
8That the mother forthwith do all acts and sign all documents to authorise [R School] to communicate directly with the father and to provide information relevant to [the child’s] schooling including copies of all school reports directly to the father.
9That the mother notify the father as soon as practicable after being notified by the school of any school event that parents are invited to attend and that the father be permitted to attend any such event.
10That both parties shall keep the other party informed at all times of their current residential address, residential telephone number, mobile telephone number and email address.
11That each party notify the other of any serious illness suffered by [the child] or any emergency admission to hospital or injury suffered by [the child] whilst he is in their care immediately it is practicable to do so.
12That the mother provide all authorities and directions necessary for all health professionals consulted by [the child] to provide to the father all information and material held by them in relation to [the child].
13That [the child] be personally supervised by the father and the father be responsible for [the child’s] care on each occasion [the child] spends time with him pursuant to Orders 4 and 5 hereof.
14That the parties be restrained and use their best endeavours so as to prevent any other person from:

14.1 Making any derogatory comments to or about the other party or his or her relatives to or in the presence or hearing of [the child]; and
14.2 Discussing these proceedings with or in the presence or hearing of [the child].
15That Orders 4.1 and 5 continue without suspension during school holiday periods provided that in the event the mother wishes to take [the child] away from Sydney on holidays she provides to the father in writing not less than 21 days notice of her intention to travel out of Sydney with [the child] together with her proposal for make up time.
16That the father provide the mother not less than 14 days notice in writing of his unavailability to spend time with [the child] pursuant Order 4 or 5 hereof.
Notations
17The Court notes that [the child] presently attends swimming lessons at 6pm on Monday evenings at the … Swim School ….

Annexure 2

1That all previous Orders be discharged.
2That the mother and the father have equal shared parental responsibility for [H Brandon] (born … July 2006) (“[the child]”).
3That [the child] live with the mother.
4That [the child] spend time with the father as follows:
4.1    From after school until 7.00 pm each Monday provided that he take [the child] to any extracurricular sporting activity he is enrolled to attend during that period.
4.2    Upon from the father moving from his current residence to a new residential address, from after school until 7.00 pm each Friday.
4.3    For two hours on [the child’s] birthday in the event that [the child’s] birthday falls on a weekday and 4 hours in the event that [the child’s] birthday falls on a weekend at times agreed by the parties in writing.
4.4    For four hours on Christmas Day by agreement and failing agreement from 2.00pm until 6.00pm.
4.5    For four hours on Father’s Day from 9.00 am until 1.00pm or as otherwise agreed by the parties in writing.
5That for the purposes of implementing Order 4 hereof the father is to collect [the child] at the commencement of time with [the child] from [R School] or the mother’s residence where time is to be spend [sic] on a day which [the child] is not at school and deliver him to the mother’s residence at the conclusion of time.
6That the father be restrained from taking [the child] to his current residence at [Suburb M address].
7That the father be restrained from bringing [the child] into contact with Mr [G], or within 100m of Mr [G’s] residence at [Suburb M address] and in the event that [the child] comes into contact with Mr [G] inadvertently, the father is to immediately remove [the child] from Mr [G’s] presence and thereafter telephone the mother to advise what has occurred.
8That the mother forthwith do all acts and sign all documents to authorise [R School] to communicate directly with the father and to provide information relevant to [the child’s] schooling including copies of all school reports directly to the father.
9That the mother notify the father as soon as practicable after being notified by the school of any school event that parents are invited to attend and that the father be permitted to attend any such event.
10That both parties shall keep the other party informed at all times of their current residential address, residential telephone number, mobile telephone number and email address.
11That each party notify the other of any serious illness suffered by [the child] or any emergency admission to hospital or injury suffered by [the child] whilst he is in their care immediately it is practicable to do so.
12That the mother provide all authorities and directions necessary for all health professions, including dentists, doctors, psychologists or any other health care professional, consulted by [the child] to provide to the father all information and material held by them in relation to [the child].
13That the Independent Children's Lawyer in consultation with the Single Expert, Professor [O], nominate the names of 3 Child Psychologists for [the child] to attend upon and if the parents cannot agree on the Child Psychologist within 14 days the Independent Children's Lawyer is to nominate the Child Psychologist for [the child] to attend upon.
14That both parties share equally in the cost of [the child] attending upon the Child Psychologist as referred to in Order 12 herein.
15The Independent Children's Lawyer is to provide the Child Psychologist with the following documents:
15.1 A copy of the final Orders and Reasons for Judgment.
15.2 A copy of Dr [O’s] Report dated [date omitted]
16That both parties be at liberty to attend upon such child psychologist at the discretion of the child psychologist.
17That [the child] be personally supervised by the father and the father be responsible for [the child’s] care on each occasion [the child] spends time with him pursuant to Order 4 herein.
18That neither party denigrate or criticise the other party in the presence or hearing of [the child].
19That both parties are restrained from discussing these court proceedings with [the child] or within hearing of [the child].
20That upon a request from the Independent Children's Lawyer the mother will facilitate [the child] attending upon the Independent Children's Lawyer for the purpose of the Independent Children's Lawyer explaining the Orders to [the child].
21That Order 4 continue without suspension during school holiday periods provided that in the event the mother wishes to take [the child] away from Sydney on holidays she provides to the father in writing not less than 21 days notice of her intention to travel out of Sydney with [the child] together with her proposal for make up time on no more than 3 occasions in any 12 month period.
22That the father provide the mother not less than 5 days notice in writing of his unavailability to spend time with [the child] pursuant Order 4 hereof unless that unavailability falls over any public holiday when the father shall give 14 days written notice.
Notations
23The Court notes that [the child] presently attends swimming lessons at 6.00 pm on Monday evenings at the … Swim School ….

[2012] FamCA 368

22 May 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness