MAGOLAN & CAFFERY

FAMILY COURT OF AUSTRALIA

MAGOLAN & CAFFERY

[2021] FamCA 179

FAMILY LAW – CHILDREN – Parental responsibility.

Family Law Act 1975 (Cth) ss. 60B(1), 60B(2), 60B(3), 60B(4), 60CA, 60CC(1), 60CC(2), 60CC(2A), 60CC(3), 61DA, 65DAA

APPLICANT:

Ms Magolan

RESPONDENT:

Mr Caffery

FILE NUMBER:

DNC

141

2020

DATE DELIVERED:

1 February 2021

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide by video link to Darwin and Sydney

JUDGMENT OF:

Mead J

HEARING DATE:

27 and 28 January 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Nottle of Counsel

SOLICITOR FOR THE APPLICANT:

Grays Legal NT

COUNSEL FOR THE RESPONDENT:

Ms Noble

SOLICITOR FOR THE RESPONDENT:

Withnalls Lawyers

Orders

That the mother have sole parental responsibility for X born … 2015.
That X live with the mother.
That X spend time with the father at the following times and on the following conditions:
(a)for up to five (5) consecutive days in Darwin during each of the Northern Territory school holidays at the end of Terms 1, 2 and 3 of the 2021 school year from 10.00 am to 6.00 pm each day supervised by the paternal grandmother or Ms B or Ms C or the mother or a member of the maternal family, upon the father giving to the mother not less than twenty-eight (28) days’ written notice of his intention to take such time together with notice as to who of the paternal family will be supervising or, in the alternative, a request for supervision by a member of the maternal family, with the mother to ensure that such supervision is available if requested;
(b)for up to eight (8) consecutive days in two (2) separate blocks in Darwin during the 2021/2022 Christmas school holidays on the same terms and conditions as provided for in paragraph 3(a) hereof;
(c)for up to eight (8) consecutive days in Darwin during the school holidays at the end of Term 1 in 2022 with the same notice requirement as provided for in paragraphs 3(a) & (b) hereof but with the father to be at liberty to have X stay overnight on two (2) separate occasions not less than forty-eight (48) hours apart in the event that his mother or one of the other alternate paternal family supervisors is in Darwin with him AND FURTHER PROVIDED THAT in the father’s notice to the mother of his intention to take that overnight time he nominates the two (2) overnight periods and the place at which X will be staying;
(d)during the school holidays at the end of Term 2 in 2022 for up to eight (8) consecutive days in Darwin from 10.00 am on the first day to 5.00 pm on the last day on the same terms and conditions as apply with respect to the overnight time referred to in paragraph 3(c) hereof or, in the alternative from 10.00 am to 5.00 pm each day;
(e)during the Northern Territory school holidays that occur as and from the end of Term 3 in 2022 and thereafter in Sydney on the following terms and conditions:
(i)for one (1) half thereof;
(ii)to be fully supervised by the paternal grandmother or Ms B or Ms C up to and inclusive of the Term 3 school holidays in 2023;
(iii)the Christmas school holidays in 2023/2024 and all term school holidays in 2024 to be substantially in the presence of the paternal grandmother, Ms B or Ms C and on condition that all overnight periods take place under the supervision of one of those persons;
(iv)thereafter on an unsupervised basis; and
(v)the time that occurs in Sydney occur in the second half of the school holiday periods in odd years and in the first half of the school holiday periods in even years.
That X communicate with her father by telephone or FaceTime or Skype as follows:
(a)between 7.00 pm and 7.30 pm Darwin time on Wednesday of each week; and
(b)for up to 30 minutes on each of X’s birthday, Easter Sunday, Christmas Day and Father’s Day at times as agreed or otherwise between 8.00 am and 8.30 am Darwin time on each such day.
That the mother facilitate X receiving such calls on the mother’s mobile telephone.
That the father pay all travel and accommodation costs for X and himself arising as a consequence of these orders and provide the mother with not less than seven (7) days’ notice of flight details.
That handovers for all time that takes place in Darwin occur at an agreed public place as between the parents or their agents and with the supervisor to be present at all handovers.
That handovers for all time that occurs in Sydney occur at Darwin airport as between the parents or their agents with the father to be at liberty to have his mother or Ms B or Ms C travel to Darwin to accompany X to and from Sydney as long as supervision is required.
That the mother ensure that the father is notified in writing not less than fourteen (14) days prior to the event X’s appointments for any counselling as referred to in paragraph 170 of the report of Ms D dated 24 September 2020, together with details of the therapist.
That the mother keep the father informed at all times of the school or child care facilities attended by X together with the contact details.
That both parents be at liberty to:
(a)obtain copies of all school reports, photographs, newsletters and any other information usually provided to parents from any child care facility or school attended by X;
(b)communicate with any of X’s teachers for the purpose of parent/teacher interviews; and
(c)communicate with any therapist or medical practitioner attending on X from time to time,
NOTWITHSTANDING the order for sole parental responsibility in favour of the mother made herein.
That both parents forthwith advise the other of them as to any serious illness or accident suffered by X whilst in their care together with details of any medical practitioner, allied health professional or hospital attended by or treating X.
That both parents keep the other of them informed of the following at all times:
(a)the general practitioner or medical clinic X is to attend when in their care;
(b)their residential address and any change thereto from time to time; and
(c)their contact telephone number and email address.
That the mother ensure that X receives any letters, cards or presents the father or members of the paternal family may forward to her from time to time and use her best endeavours to ensure X responds to and acknowledges such correspondence or gifts.
That the parties be restrained and injunctions are hereby granted restraining each of them from insulting, denigrating or criticising the other of them to or in X’s presence or allowing any other person to do so.
That both parents forthwith attend at individual counselling specifically as referred to in paragraph 170 of the report of Ms D dated 24 September 2020 and provide to their respective therapists or counsellors a copy of the said family report and these orders.
That the mother provide a sealed copy of these orders to any child care facility, school or medical clinic or practice attended by X from time to time.
That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 141 of 2020

MS MAGOLAN

Applicant

And

MR CAFFERY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

Ms Magolan, who is aged 24, and Mr Caffery, who is aged 26, are the parents of X, who is aged five years and two months. The parties met in Sydney in either September 2013, according to the mother, or April 2014, according to the father. Nothing turns on that issue.
It is common ground that, by about mid-2015, the relationship had ended. During the periods of the relationship, the parties lived in Sydney.
Shortly after separation, the mother, who was from Darwin, travelled overseas to further her career. Whilst overseas, she discovered she was pregnant. She advised the father of the pregnancy and returned to Australia. The parties were unable to reconcile their relationship and the mother travelled to Adelaide to visit her grandparents.
X was born in Adelaide in 2015 at 31 weeks gestation. The mother was not quite 19 years of age.
X was in the neonatal intensive care unit for approximately four weeks. The father and the paternal grandmother visited the mother in Adelaide in early November for three to four days while she was in hospital prior to X’s birth and again on the day of X’s birth.
The mother returned to Sydney with X on 22 December 2015. X and the mother lived in the paternal grandmother’s home, as did the father, but in approximately late January 2016 the mother and X left for Darwin with the assistance of the maternal grandfather without notice of her intention to the father. He found out her plans through a comment made by a friend of the mother’s.
The mother has remained living in Darwin with X since then. The father has remained living in Sydney. Between approximately mid-2016 and early 2020 the parties were able to agree parenting arrangements.
Initially, X spent time with her father in Darwin, but from late 2016 time was spent in both Darwin and Sydney. Originally, either the father travelled to Darwin or the mother flew with X to Sydney.
When X was about two years of age the parties agreed that the father would collect X in Darwin, take her to Sydney, and then return her to Darwin. That arrangement worked well until March of 2020.
On 2 March 2020 X made disclosures at her child care centre suggestive of sexual abuse and indicating the perpetrator of the alleged abuse to be her father. The disclosure was reported to Northern Territory Police and Territory Families. X was interviewed by the police on 4 March 2020. The mother was also interviewed. X repeated her disclosures made at child care to the police.
X had last spent time with her father on 10 January 2020. Since the disclosure the mother has refused to allow X to spend time with the father.
On 18 March 2020 the mother filed an initiating application seeking the following orders:
·that X live with her;
·that she have sole parental responsibility for X;
·that the father have no contact with or spend any time with X;
·that the father be restrained from removing or attempting to remove X from the Northern Territory of Australia and from attempting to contact or contacting her; and
·that she be permitted to change the last name of X without the permission of the father.
On 1 April 2020 the father filed a response to that initiating application. He sought the following orders:
·that he have sole parental responsibility for X;
·that X live with him in New South Wales;
·that she spend time with the mother for a period of up to seven days every two months, provided that X remained at all times within the Sydney metropolitan area;
·that X have communication with the mother outside the times referred to above, twice per week at times to be agreed between he and the mother, by telephone, Skype, FaceTime, or similar mode of communication;
·that X be allowed to communicate with the mother outside the times referred to in the previous two dot-points as she wishes and that the father will, to the extent possible, facilitate that communication;
·that the father keep the mother informed of any:
omedical problems or illnesses suffered by X while in the mother’s care;
oany medication prescribed for X;
oany social, school or religious functions which X is to attend;
othe residential address of the mother and particulars of the others who may reside with the child;
oand other matters relevant to X’s welfare;
·that for the purposes of communicating information between the parties, the mother and the father shall:
ocommunicate by telephone matters of an urgent nature; and otherwise
ocommunicate by email or SMS about day‑to‑day matters including arrangements for the mother to spend time with or otherwise communicate with X;
·that each party be refrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other in the presence or hearing of the child;
·that each party advise the other party and keep the other party advised of their current address and contact telephone numbers, including both landline and mobile phone numbers if applicable, and advise the other party of any changes to those details within seven days of the change occurring;
·that the mother be restrained from using or attempting to use any surname other than the surname Caffery in respect of X, either formally or informally, for any purpose whatsoever; and
·that the parties both be restrained from removing and/or causing or allowing X to be removed from the Commonwealth of Australia without the prior written consent of the other party.
On 3 April 2020 a section 69ZW order was made in the Federal Circuit Court in Darwin by Judge Young.
On 6 May 2020 an order was made in the Federal Circuit Court in Darwin providing for X to communicate with her father every second Wednesday at 7.00 pm by FaceTime or telephone.
On 15 May 2020 the matter was transferred from the Federal Circuit Court to the Family Court of Australia and on 25 June 2020 a family report was ordered by Registrar Brown. That report was released on 24 September 2020.
The matter came before me for trial directions on 19 October 2020 and the trial commenced on 27 January 2021. The applicant mother relied on her trial affidavit filed on 17 December 2020, the family report of Ms D dated 24 September 2020 and the material produced pursuant to the section 69ZW order from Territory Families. The father relied on his trial affidavit filed on 19 January 2021 and the family report. Both parties and the family report writer were cross-examined.

The Law

In determining parenting disputes the Court must consider the evidence of the parties against the relevant provisions of Part VII of the Family Law Act 1975 (as amended), herein after referred to as ‘the Act’.
In particular, the Court must have reference to section 60B, section 60CA, section 60CC, section 61DA and, where applicable, section 65DAA. It is important for the parties to understand the legislative basis upon which parenting orders are based, in particular the requirement set out in section 60CA, namely:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
The Court must also have regard to the primary considerations set out in section 60CC(2)(a) and (b), namely:
(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.
The note to section 60CC(2) is that: making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Section 60CC(2A) is in the following terms:
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
The provisions of section 60B guide the Court as to the intention of the legislature with respect to what parenting orders should ideally provide for children. Section 60B(1) defines the Objects of parenting orders as:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) defines the principles underlying those Objects as:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(3) specifically refers to the rights of Aboriginal or Torres Strait Islander children, namely that an Aboriginal child’s or Torres Strait Islander child’s rights to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Section 60B(4) is in the following terms:
An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CC directs the Court as to how to determine a child’s best interests. I have already referred to the primary considerations set out in section 60CC(2), but the balance of the section is in the following terms.
Section 60CC(1) is in the following terms:
Subject to subsection (5), in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
I have already read out the primary considerations in section 60CC(2) and the matter raised in section 60CC(2A) wherein the Court must regard and give greater weight to the consideration of the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence.
Section 61DA relates to the issue of “presumption of equal shared parental responsibility when making parenting orders” and is in the following terms:
(1)When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child;
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence;
(3)When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order;
(4)The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Section 65DAA directs the Court to the considerations necessary in the event an order for equal shared parental responsibility is to be made. I shall return to that provision later.
I intend to consider the parties’ evidence and that of the family report writer against the backdrop of the provisions of section 60CC(2) and (3) as the preliminary step.

Section 60CC(2)(a)

X is dearly loved by each of her parents. That is reflected in the evidence of each of them contained in their trial affidavits and in their comments to the report writer. In addition, there is no evidence to suggest that X does not have a loving relationship with each of her parents.
Prior to March 2020 the meaningful relationship with each parent was supported by the other of them, despite their various reservations as to the character and parenting qualities of the other. This is clearly demonstrated by their cooperation with respect to parenting arrangements whereby X continued to live with her mother in Darwin and spend gradually increasing time with her father both in Darwin and in Sydney. Such arrangements were reflective of X’s parents supporting her having a meaningful relationship with the other of them. There is every indication that absent X’s disclosures at child care and to the police in March of 2020, the parents in this matter would have been able to negotiate her parenting arrangements long term without Court intervention. It is therefore important that any order the Court makes is reflective of the benefit to X of a meaningful relationship with each of her parents, provided, however, that she is safe.

Section 60CC(2)(b)

As specified in section 60CC(2A) of the Act, the Court is to give greater weight to the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to her of a meaningful relationship with each parent.
On 2 March 2020 X was at the H Childcare Centre when she made a disclosure to the teacher that she was:
…shocked on the weekend when daddy asked me to touch his bumbum and his dudu and asked me to touch his eyeball too…
This was recorded in correspondence to each of the parties from Territory Families on 15 April 2020 and contained in pages 77 to 80 of the section 69ZW material relied on by the mother and produced to the Court by Territory Families pursuant to the order of Judge Young made on 3 April 2020.
On page 12 of the Territory Families material, it is recorded that X repeated the disclosures to her teacher and also pointed to the relevant parts of her body, namely, her groin area, bottom and eyelid. It was reported on the same page that the notifier was unsure if X was referring to the mother’s boyfriend or X’s natural father when referring to “daddy”, but that during further investigation it was found that she was referring to her natural father.
X was interviewed by police through the Sexual Assault Referral Centre in Darwin in the absence of the mother on 4 March 2020. On pages 11 and 12 of the Territory Families material it is reported that X discussed:
·when daddy asked him [sic] to touch his doo doo;
·that he was sneaking everywhere and told me to touch him on the doo doo;
·the worms came from the worm collection at school;
·that I was at someone’s party and dad was sitting on the toilet and asked me to touch him on the doo doo;
·then he as [sic] a monster;
·that she touched his wee wee with gloves;
·she did not tell anyone and it will be our little secret;
·that no one else was in the toilet at the time.
It is the mother’s case that the fact that X had made disclosures was reported to her by telephone by a police officer on 10 March 2020, and that she was “shocked and afraid that someone had done something” to X. In paragraph 24 of the mother’s trial affidavit she deposes to this and to being given further detail by the police in person later that day.
The father deposed in paragraphs 60 and 61 of his trial affidavit to speaking with the mother on 10 March 2020. During this conversation the mother told him of the disclosures made by X and he felt “disgusted, sick and worried about X”. He told the mother he had not done any of the things the mother told him about.
He deposed to:
·sitting on the toilet when waiting for X to have her shower;
·to X having seen his penis when she walked in on him in the shower or on the toilet or getting changed, as closed doors mean nothing to her;
·to X getting into his bed sometimes and finding her there when he wakes up;
·to it not being about him, but that the mother should report it to day care or the police.
He deposed to a further telephone conversation with the mother on 12 March 2020 when she asked him if X had seen his penis erect. He said he denied that she had and that if she ever saw his penis in the circumstances he had described in the earlier call he tells her to leave it alone and that it is his.
By 15 April 2020 the police and Territory Families’ investigations had concluded and the parties had been advised in writing by Territory Families that:
·there was insufficient evidence to proceed with further investigation;
·although there was insufficient evidence, Territory Families recommended the father organise someone within his family network to supervise future time with X;
·the allegations are serious and the child clearly identified the father;
·the investigation has been finalised and it has been recommended that the case close.
In cross-examination the father denied any inappropriate sexual conduct towards X. He reluctantly conceded in cross-examination that he accepted the disclosures by X arose during a group exercise at child care after first saying he didn’t know if he accepted that scenario. He accepted that X had said what was reported. When asked if he accepted that X reported that she had been told that it is “our little secret” he replied “I believe so”. This was the same response he gave to being asked whether he accepted that X had clearly referred to him in her disclosure.
Counsel for the mother submitted that the Court should be very cautious in accepting the evidence of the father. He submitted that:
·the father was disingenuous in some of his answers, for example saying that he did not understand the meaning of words such as “good terms” and “fractious” in circumstances where he has a high level of education;
·he gave conflicting evidence as to the main reason for the failure of his and the mother’s relationship in his trial affidavit and in his interview with the family consultant;
·he tried to reframe questions in cross-examination and did not try his best to be truthful or honest in his answers; and,
·notwithstanding his statements to the family consultant as reported by her in paragraph 81 of the family report with respect to the mother, where he is reported to have said:
Mr Caffery described his post separation parenting relationship with Ms Magolan as ‘always inequitable’. He said, ‘I have no control with X; it’s all on her terms’… I have to go along with what she says and there ‘is no compromise’, and, ‘she never listens to my perspective and I have to keep the peace’.
In cross-examination the only issue of control the father could think of was the mother dictating X’s bedtime when she was staying with him in Sydney.
He further submitted that in circumstances where X’s disclosures to her child care worker and the police were consistent in their content, spontaneous, and, in particular where they included the component of being told by daddy not to tell anyone about what he had done and it should be “our little secret”, the Court should find that there is no other explanation for the disclosures other than that the incidents described occurred. He also submitted however that if the Court was not persuaded to make such a definitive finding it should find that X is at real risk of exposure to sexual abuse in the care of the father, and that the risk could best be managed by supervision of X’s time with her father.
Counsel for the father submitted that evidence of a child of X’s age is unreliable, both as to what she meant and as to where she got the information she disclosed. She conceded that the father has no explanation for the disclosures, but that he was clear in his evidence that he did not do what is alleged and that X is not at risk in his care.
She submitted that:
·he was frank in his discussions with Territory Families and Northern Territory Police;
·he had called them before being sure whether the mother had done so;
·he was concerned that the mother had accepted what she was told X had disclosed without looking for any alternative explanation, especially when her partner was mentioned in the notifications to Territory Families;
·she then unilaterally stopped X’s contact with the father;
·X’s disclosure was that the incidents had occurred “on the weekend”, when in fact X had not spent time with her father for some seven weeks prior to the disclosure.
It was her position that the Court was not in a position to find that the father had inappropriately dealt with X, and that the level of unreliability in her disclosure mitigated against her time with her father being limited in the way sought by the mother. She also submitted that the father’s evidence as to when X may have seen him naked was reasonable and natural and that, at X’s age, there was no shame in seeing her father naked.
Taking the evidence of the parties, that contained in the material relied on by the mother produced to the Court by Territory Families pursuant to the section 69ZW order, and the evidence contained in paragraphs 146 and 147 of the family report of Ms D in respect of which she was cross-examined and maintained her opinion, I find on the balance of probabilities that X has been exposed to a level of inappropriate sexual conduct.
I am not however able to go so far as to find on that same test that the perpetrator was the father, although that seems the most likely explanation. I am not able to make that finding in circumstances where I was not directed to any evidence of X specifically identifying that she was referring to her biological father when she made her initial disclosure, or in subsequent interviews. The father conceded in cross-examination that when X had referred to “daddy” she was referring to him. I am satisfied that this was based on what he had been told by “Mr F” as referred to below.
The section 69ZW material refers to the question of whether X was referring to her biological father or the mother’s partner, Mr E. On page 12 of the Territory Families notes, the following statement appears:
…During investigation it was found that X was referring to her natural father, Mr Caffery, when she said daddy.
In the correspondence from Territory Families to each of the parents dated 15 April 2020, it was stated “the child clearly identified the father”.
On page 16 of the section 69ZW material, the following appears:
CIT worker called notifier back 10.45am and asked if X was referring to Mr Caffery as Daddy in conversation.
followed by:
(redacted) was not certain who X was referring to in the conversation but was not her biological father as he resides interstate.
X had a conversation with (redacted) and stated that Mr E is her new Daddy.
On the bottom of the same page, the following note appears:
18/03/2020: Sexual Exploitation. (redacted) X has disclosed that her father Mr Caffery has asked her to touch his ‘doodle’ when she was 4 years old.
On page 17 of the same notes, the following information is recorded:
20/03/2020

14:10 hrs.
Case manager, Mr F is aware of the current concerns. Mr F advised there is no need to screen in current notification for another investigation because the concerns are similar to the current CPINV case. CIT asked Mr F who is the father the child is referring to and Mr F advised it is the biological father and (redacted) Mr F will be calling the biological father on Monday 23 March 2020 to address the concerns.
The father referred to this call and a subsequent call from a police officer in paragraphs 75 to 78 of his trial affidavit. He deposes to “Mr F” telling him that when “they” asked X, she said she was referring to “dad Mr Caffery”. No evidence was adduced by either party with respect to any record of interview with X.
The Court has no evidence before it as to what conversation took place with X with respect to identification of ‘daddy’, who that conversation was with, and when it occurred. I am left wondering why such important evidence was not adduced.
Having said that it seems more likely than not on the available evidence that she was referring to her biological father, that falls short of the Court finding that he was the perpetrator on the balance of probabilities. Nevertheless, I find that any parenting orders made by the Court must address the need to protect X from the risk of physical or psychological harm that she may face in the care of her father and that such risk can best be managed by time, the limitations and supervision. I will return to the issue of appropriate orders to manage that risk after a consideration of other relevant factors.

Section 60CC(3)

These factors are referred to in the legislation as “additional considerations” and are to be given such weight as the Court considers appropriate after its assessment of the primary considerations. I deal with them in the order they appear in the legislation.
Section 60CC(3)(a) is in the following terms:
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
X is now five years and two months old. It is clear that she is not of an age where she could possibly understand the issues concerning her future parenting arrangements and I do not consider this to be a relevant factor.
Section 60CC(3)(b):
The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child).
X has lived primarily with her mother from birth. She has spent significant time with her father both in Darwin and Sydney, including, from early 2018, consecutive weeks with him. She was interviewed by the family report writer when she was aged four years and ten months. She spoke positively about both of her parents and expressed a wish to live with her mother and Mr E and visit her father in Sydney. She expressed feeling safe with each of her parents and missing seeing her father. These matters were set out in paragraphs 121 to 129 of the family report. I find that X has a close and loving relationship with each of her parents, but that the history of her care arrangements and her comments to Ms D, as reported in paragraph 129 of the report, suggest that her primary emotional relationship and dependency is with and on her mother.
Section 60CC(3)(c):
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child.
I am satisfied that both parents have taken every opportunity to participate in long-term decisions about X, spend time with her and communicate with her. There is no doubt that the father has a view that the mother has ‘had it all her way’ in relation to these issues, from taking X to live in Darwin when she was two months old to, in his view, ‘controlling’ his relationship with the child. I am not satisfied on the evidence that such is the case.
At the time the mother took X to Darwin in January 2016 she was only 19 years old, was not in a romantic relationship with the father, what relationship they did have was, to use the words of the mother’s Counsel, “fractious” and she was wanting and needing the support of her family after the trauma of an unexpected pregnancy and a premature birth.
The father was clearly wishing for her to remain in Sydney with X, but that would have been difficult for her with only the father’s family to rely on for support, noting that they had been supportive during the relationship.
From early after her return to Darwin until March 2020 the parties reached agreement as to gradually increasing and ultimately significant time spending arrangements for X with her father, some taking place in Sydney, with no requirements for supervision other than when by agreement, both parties stayed at the same place.
The father conceded that when X stayed with him in Sydney, the only thing the mother tried to regulate was X’s bedtime.
These circumstances indicate each party supporting the role of the other of them as X’s parents. I reject the evidence of the father as to the mother being controlling with respect to his participation in X’s life and his role as her father.
Section 60CC(3)(ca):
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
It would appear that the mother is primarily responsible for financially supporting X in circumstances where, on the father’s evidence, in respect of which the mother makes no complaint, he is on a limited income currently through ABSTUDY. The father has however paid all the costs associated with the time X spent with him in Sydney, including airfares and the day care costs incurred when she was absent from Darwin. I find that each party is complying with their obligations to maintain X to the best of their ability.
Section 60CC(3)(d):
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
In the mother’s initiating application, she sought orders that would result in a complete cessation of X’s relationship with her father. In the father’s response, he sought orders changing X’s primary residence and significantly reducing her time with and communication with her mother. Both parties sought to have sole parental responsibility.
At trial the mother sought orders as set out on pages 10 and 11 of her case outline. They specified:
·X living with her;
·her having sole parental responsibility;
·X spending very limited supervised time with her father in Darwin at G Contact Service for 2021; then
·time in Darwin during the daytime only supervised by her paternal grandmother during 2022;
·overnight time in Darwin for 24 hour periods supervised by the paternal grandmother in Darwin in 2023, and
·thereafter supervised time for half of the school holidays in 2024 and unsupervised for half of the school holidays from 2025.
The proposed orders were silent as to whether that time should be in Darwin or Sydney. The proposal was somewhat convoluted and confusing and was not really well clarified in cross-examination.
The orders sought by the father at trial were set out on pages 7 to 9 of his case outline. He sought an order for shared parental responsibility but conceded residence to the mother. He proposed unsupervised time spending for half of all school holidays starting immediately in Sydney, as well as additional term time with X in Darwin at his nomination.
He proposed that travel would be at his cost with handovers at the Darwin Airport. He proposed regular telephone or FaceTime communication as well as on special occasions, and a formal method of communication with the mother either by text, email, or by the Messenger app, other than in the case of an emergency. He sought orders as to keeping each of the other of them informed of addresses, contact details, health and education issues, and for each parent and X to participate in counselling as recommended by Ms D in paragraph 170 of her family report.

In the absence of X’s disclosures and taking into account the history of the time she has spent in the care of each parent up to January 2020, the orders proposed by the father would, to my mind, be least likely to affect X in terms of separation from either her parents or members of her extended families on both sides.
The orders proposed by the mother would I consider have a significant impact on X, who clearly loves her father, misses seeing him, and greatly enjoys her time with him. Nevertheless, I cannot ignore what I have found to be a risk to X of possible sexual abuse in the unsupervised care of her father.
X is described in the Territory Families materials as being confident and comfortable in speaking with police about her disclosures and giggling at the time of the initial disclosure. I find these matters point to the issues discussed by the family consultant in paragraph 146 of her family report, namely, that at four years of age at the time of the disclosures, she was not of an age to have “developed a sense of shame or secrecy about sexual activity”.
In paragraph 147, she opines that:
…in some ways children between the ages of approximately 5 and 10 years of age are more vulnerable to the dynamics of manipulation, power and control commonly inherent in circumstances of sexual abuse.
She was not challenged in relation to this opinion.
Taking this evidence, which I accept, into account together with X’s disclosures that she was told by “daddy” that what happened was to be their “little secret”. I find that the orders proposed by the father do not offer reasonable and necessary protection to X with respect to the risk of exposure to sexual abuse in his care. I find that some reduction in the time she spends with her father during her very young years, together with a level of supervision built in, will be best suited to her maintaining a meaningful relationship with her father, but that the reduction and conditions proposed by the mother are unnecessarily restrictive and may impact on X’s already‑established meaningful relationship with her father.
Section 60CC(3)(e):
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Although Darwin and Sydney are far apart, the travel for X and for the father have been managed to date and I am confident can also be managed in the future. I accept that any requirement for the father to initially spend time with X in Darwin and supervised may be financially difficult for him. I note his evidence in cross-examination included that he did not know if he was prepared to make sacrifices to spend time with X in the future, but rather it “depends” and that he had already made sacrifices. He was also unsure as to whether he would look for employment upon completion of his master’s degree in the extenuating circumstances relating to his father. This may impact on his financial capacity for travel to and from Darwin, but ultimately that is a matter for the father.
Section 60CC(3)(f):
The capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
Although both X’s parents are very young, there is no evidence to suggest that they are unable to provide for X’s physical and intellectual needs. X is already having some play therapy and the mother intends for her to have counselling as recommended by Territory Families and Ms D. The mother rather reluctantly agreed in cross-examination that she is willing to engage in some therapeutic support to assist in overcoming her lack of trust in the father.
The father was quite evasive about the issue, saying he had told his therapist about X and spoken with her about the recommendation of Ms D contained in paragraph 170 of her report. He said he had commenced seeing that therapist in 2015, before X’s birth, with respect to relationship issues between he and the mother.
I find that both parties will need all the assistance they can get to help X through these current issues. I have some considerable concern that if they do not take up the recommendations of Ms D, they may each struggle to provide the level of emotional support for X that she may need.
In circumstances where there is no doubt that she made the disclosures and where there is no evidence that she has been coached, it is important for her parents to have as much assistance as possible not only for X but for themselves. This applies particularly to the father, where X has apparently identified him as the person who has exposed her to inappropriate sexual behaviour.
Section 60CC(3)(g):
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
X is five. She has much to learn from both of her parents. They live quite different lifestyles in different places. She loves each of them. Provided she is safe from abuse or exposure to abuse, it is in her interests to be able to share in the lives of each of her parents.
Section 60CC(3)(h):
If the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right.
Both of X’s parents are Aboriginal from different country. Each parent’s Aboriginal culture has different language, stories, laws and traditions. Each of her parents identify strongly with their culture. I intend that orders I make will ensure that X is able to share her parents’ respective Aboriginal cultures which of course are also her cultures, so that these rich traditions are incorporated into the fabric of her life.
Section 60CC(3)(i):
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I find that the mother is a devoted parent. Her reactions to X’s disclosures in March 2020 were understandable, but it is important that she learn to assist X to have a relationship with her father, who she loves and misses, in a way that X is safe. Her initial view that X should have no contact with her father has clearly changed, but she is still very cautious.
I find that her actions have been based on a genuine love and concern for X and a determination to keep her safe. She was able to concede in cross‑examination that X’s father loves her and that he has qualities that result in X enjoying her time with him and with his extended family, particularly her paternal grandmother.
I have no doubt that the mother was blindsided by X’s disclosures and had no idea how to process them herself or understand where they could possibly come from other than a truthful scenario. Both parents believe that X is intelligent, with the father conceding in cross-examination that she is cognitively bright with good interpersonal skills. He agreed that she is confident in expressing her opinions and has a very big personality.
There are concerns raised, as a result of X’s disclosures, as to the father’s attitude to her and to the responsibilities of parenthood. The father presented in the witness box as a person who was very controlled, cautious with respect to many of his answers, and at times avoidant of direct responses. There is little doubt that at the moment he has as little regard for the mother as she for him. It was of concern that he considered that the mother had been controlling of his relationship with and parenting of X since her birth. He believed that she should have remained in Sydney with X after her birth, notwithstanding that their relationship had concluded prior to X’s birth and that the mother had no support from family or close friends available to her in Sydney. He was critical of the amount of time he was able to spend with X, notwithstanding no Court proceedings were instituted by either party until after X turned four, and then only in the circumstances of her disclosure.
The mother and the father agreed her parenting arrangements prior to that, including by the time X was just over two years of age, X spending time with the father and the paternal family in Sydney. By 2019 this occurred for two to three weeks at a time while the mother remained in Darwin. He was critical of what he considered to be the mother suggesting to him what time X should go to bed whilst in his care, rather than acknowledging such information to be helpful in maintaining consistency for X.
These issues I find illustrated the mother’s evidence that during the relationship the father was controlling in his conduct towards her. It is an important duty and responsibility of parenthood that parents are each respectful and courteous to the other of them, even if they do not much care for each other. This enables children to feel free to love each of their parents and enjoy their time with them, rather than being burdened with feelings of disloyalty.
The mother’s concessions as to the father’s parental qualities and the parenting arrangements she agreed with the father without the need for orders are reflective of the mother’s greater capacity for recognising this issue than the father.
The mother has at all times been X’s primary care provider, lives a long way from the father, is almost solely financially responsible for X, and could be said to have been in the ‘box seat’ if she had wanted to create problems for X in maintaining her close and loving relationship with her father.
After March 2020 her attitude did change significantly. It is to be hoped that she has now had greater time for reflection on what occurred, a greater understanding of the importance of X’s relationship with her father and her paternal family and accepts that this can be achieved with protection built in to the arrangements.
Sections 60CC(3)(j) and (k) relate to issues of family violence.
I am satisfied that the parties’ relationship was, to use the words of the mother’s Counsel, “fractious”. I find that in all probability the father was controlling of the mother, as evidenced by his attitude throughout cross-examination and his complaints of the mother to which I have referred. I find however that neither parent now fears the other of them. They live a great distance apart and their level of contact at handovers can be managed by them occurring in public places.
I do not consider these factors to be an issue that otherwise is of significance in this matter, particularly since the relationship ceased in 2015 prior to X’s birth and when both parents were very young.
Section 60CC(3)(l):
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is to be hoped that the orders I intend to make will set in place arrangements for X that will last well into the future and that further proceedings will not be necessary.

Parental Responsibility

Returning to the issue of parental responsibility and the provisions of section 61DA, neither the mother nor the father trusts the other of them. They live a long way apart. They both love X dearly. I find that the father’s attitude to the mother has historically and continues to be one where he seeks to control the mother but attempts to deflect that attitude onto the mother without justification.
X has made very concerning disclosures. At this time she seems relatively unaffected, but future effects are unknown. Both parents are supportive of counselling for her. It is important that they both be involved in that process to the extent that the therapist considers beneficial for X.
An order for equal shared parental responsibility in this matter may well create situations from time to time that result in conflict. In addition, X’s disclosures naming her father cannot be ignored. I find that such an order is not in X’s best interests. It is important however that the mother ensure that the father is fully informed of decisions she intends to make for X with respect to issues such as education and health. This needs to be in sufficient time to enable him to respond to her with his views, and for the father to be involved in such matters where it is appropriate.
I intend to make an order that the mother have sole parental responsibility.
For those reasons and in those circumstances, I do not need to address the provisions of section 65DAA as the evidence relates to them.

ORDERS DELIVERED

I have not included at the end of paragraphs (3) or (4) of the orders the words ‘or such other times as agreed or as requested by X’. That is for two reasons. Firstly, X is only five and I am sure, considering the history of this matter, that within three or four years at the very least and based on the impression gained of the mother and the concessions made by her in the witness box, that such an order won’t be needed. Secondly, I do not wish to create a situation where there are requests made for additional time that are refused leading to disputes.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 1 February 2021.

Associate:

Date: 6 April 2021

[2021] FamCA 179

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness