Marlin and Otif

[2008] FamCA 1264

FAMILY COURT OF AUSTRALIA

MARLIN & OTIF [2008] FamCA 1264

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child – Allegations of sexual abuse

Family Law Act 1975 (Cth) – s 60B; s 60CA; s 60CC; s 61DA; s 61B; s 65AC; s 65DAE; s 65DAA

APPLICANT: Ms Marlin

RESPONDENT: Mr Otif

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAF 606 of 2006

DATE DELIVERED: 29 April 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Flohm J

HEARING DATE: 13, 16, 17 July 2007 & 2, 3, 4 & 7 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: Mr Harman

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lioumis

Orders

1. That all previous parenting orders in relation to P Marlin-Otif born … December 2002 (“the child”) are vacated.

1. That Ms Marlin (“the mother”) and Mr Otif (“the father”) are to have equal shared parental responsibility for decisions relating to the major long-term issues for the child EXCEPT as otherwise provided in these orders.

1. That the mother is to have sole responsibility for decisions as to the child’s daily care during periods when the child is living with her and the father is to have sole responsibility for decisions as to the child’s daily care during periods when the child is living with him.

1. That the child is to live with the father at the following times:-

DURING SECOND SCHOOL TERM 2008

(i)Each alternate weekend commencing 2 May 2008 from the conclusion of school Friday to 5.00pm Sunday.

SCHOOL HOLIDAYS JULY 2008

(ii)From 5.00pm Sunday 6 July 2008 to 5.00pm Friday 11 July 2008.

DURING THIRD SCHOOL TERM 2008

(iii)Each alternate weekend commencing 25 July 2008 from the conclusion of school Friday to before school Monday.

SCHOOL HOLIDAYS SEPTEMBER/OCTOBER 2008

(iv)From 9.15am Saturday 29 September 2008 to 5.00pm Saturday 4 October 2008.

DURING FOURTH SCHOOL TERM 2008

(v)From after school Friday to before school Monday each alternate weekend, commencing on the first weekend of the fourth school term.

(vi)If the Friday of the period the child is to live with the father is a public holiday or pupil free day, the period the child lives with the father is to commence after school Thursday.

(vii)If the Monday of the period the child has lived with the father is a public holiday or pupil free day, the period the child lives with the father is to conclude before school Tuesday.

DECEMBER 2008/JANUARY 2009 CHRISTMAS SCHOOL HOLIDAYS

(viii)(a)        From 9.15am Saturday 20 December 2008 to 5.00pm Sunday 21 December 2008;

(b)From 9.15am Saturday 3 January 2009 to 5.00pm Saturday 10 January 2009;

(c)From 9.15am Saturday 17 January 2009 to 5.00pm Saturday 23 January 2009.

DURING EACH SCHOOL TERM FROM FIRST SCHOOL TERM IN 2009 UNTIL THE CONCLUSION OF THE SCHOOL YEAR IN 2011

(ix)From after school Friday to before school Monday each alternate weekend, commencing on the first weekend in each school term.

(x)If the Friday of the period the child is to live with the father is a public holiday or pupil free day, the period the child lives with the father is to commence after school Thursday.

(xi)If the Monday of the period the child has lived with the father is a public holiday or pupil free day, the period the child lives with the father is to conclude before school Tuesday.

MID YEAR SCHOOL HOLIDAYS FROM 2009 ONWARDS

(xii)Commencing at the conclusion of the first term 2009 and for each of the mid term holidays each year thereafter, (being holidays at the conclusion of the first, second and third school terms of the four term school year), for one week from 9.15am on the first Saturday that falls after the last day of school in the preceding term to 5.00pm on the Sunday (eight (8) days later).

DECEMBER 2009/JANUARY 2010 CHRISTMAS SCHOOL HOLIDAYS AND EACH DECEMBER/JANUARY CHRISTMAS SCHOOL HOLIDAYS THEREAFTER

(xiii)During each Christmas School holiday period commencing December 2009 / January 2010 and each alternate Christmas school holiday period thereafter:

(a)From 9.15am on the first Saturday that falls after the last day of school in the preceding term to 5.00pm Sunday fifteen (15) days later.

(xiv)During each Christmas school holiday period commencing December 2010/January 2011 and each alternate Christmas school holiday period thereafter:

(a)From 9.15 a.m. on the first Saturday that falls after the last day of school in the preceding term until 5.00 p.m. Sunday the following day.

(b)For the last fifteen (15) days of the Christmas school holidays to conclude at 5.00 p.m. on the Sunday prior to the commencement of the new school year, and to commence at 9.15 a.m. on Saturday fifteen (15) days earlier.

FROM THE FIRST SCHOOL TERM 2012 AND EACH SCHOOL TERM THEREAFTER

(xv)From after school Friday to before school Tuesday each alternate weekend commencing on the first weekend in each school term

(xvi)If the Friday of the period the child is to live with the father is a public holiday or pupil free day, the period the child lives with the father is to commence after school Thursday.

1. That the child is to live with the mother at all other times.

1. That each school holiday period is deemed to commence at the conclusion of school on the last day on which the child is required to attend school and is to conclude at 9.00am on the first day on which the child is required to attend school in the following school term, and any pupil free day occurring immediately prior to the commencement of any school holiday period or occurring immediately after any school holiday period, is deemed to be part of the school holiday period.

1. That the child is to spend special occasions each year with the mother and the father as follows (and in the event of conflict with the foregoing orders then the following provisions shall prevail):-

(a)If Father’s Day falls on a weekend when the child is not living with the father then the child is to live with the father from after school Friday to before school Monday of the Father’s Day weekend, such period to be in addition to and not in lieu of any weekend period pursuant to Order 4 above.

(b)If Mother’s Day falls on a weekend when the child is not living with the mother then the child is to live with the mother from after school Friday to before school Monday of the Mother’s Day weekend, such period to be in addition to and not in lieu of any weekend period pursuant to Order 5 above.

(c)Such other times as agreed between both the mother and father in writing.

1. That in the event the child is too ill to live with the father as set out in these orders the mother is to provide a medical certificate to the father as soon as practical after she obtains it but no later than the occasion of the next residence changeover at the Centacare Contact Centre.

1. That unless otherwise referred to in these orders, changeover of the periods when the child is living with each parent is to take place at the child’s school where the period commences immediately before or after school on a school day, and on other occasions at Centacare Children’s Contact Centre at … (“the Centacare Children’s Contact Centre”).

1. That the costs of any facilitated changeover service at Centacare Children’s Contact Centre are to be borne equally by the mother and the father.

1. That for the purpose of changeover at the Centacare Children’s Contact Centre:-

(a)The mother is to deliver the child no later than 15 minutes prior to the time specified for collection by the father.

(b)The mother is to then forthwith leave the premises prior to collection of the child by the father, unless otherwise directed by the Contact Centre Staff.

(c)The father is to collect the child from Centacare Children’s Contact Centre at the time specified for collection of the child.

(d)The father is to return the child to Centacare Children’s Contact Centre no later than ten minutes prior to the time specified for collection by the mother.

(e)The father is to then forthwith leave the premises to enable the mother to collect the child unless the father is otherwise directed by the Contact Centre Staff.

(f)The mother is to collect the child from Centacare Children’s Contact Centre at the time specified for collection of the child.

1. That when the child is living with either parent, he is to have telephone communication with the other parent as follows:

(a)Between 5.00pm and 6.00pm each Tuesday for no more than 15 minutes duration, and such telephone communication is to be initiated by the parent with whom the child is not then living.

(b)For the purposes of telephone communication, the parent with whom the child is then living is to do all things necessary to facilitate such communication by telephone including:

(i)       Ensuring that the child is made available; and

(ii)Ensuring that the child is able to speak to the other parent on as uninterrupted a basis as is practicable.

(c)For the purpose of telephone communication with the child, the father is to telephone the mother’s telephone ….

(d)For the purpose of telephone communication with the child, the mother is to telephone the father’s telephone ….

(e)In the event the child is unavailable for telephone communication, the parent with whom the child is living is to ensure that the child has telephone communication with the other parent as soon as practicable after the time specified in these Orders and no later than 9.00am the following day PROVIDED THAT for this purpose the child telephones the parent with whom the child is not then living.

(f)Such further and other telephone communication as agreed between the parties in writing.

1. That each parent is restrained from denigrating the other parent or their family to or in the presence or hearing of the child, and is restrained from causing or permitting any other person to so denigrate to or in the presence or hearing of the child.

1. That each parent is restrained from discussing these proceedings with the child or within his presence or hearing and is to ensure as far as possible that no other person other than professional persons discuss these proceedings with the child or within his presence or hearing.

1. That the mother and father are to notify each other in writing not more than 24 hours after any change to their residential address and/or telephone contact numbers including providing the details of the change of address and/or telephone contact number AND are to also advise the other parent in writing if the address and telephone contact number where the child will be staying overnight for any period is not a parent’s residential address.

1. That the child is to attend M Public School for his primary school education PROVIDED THAT if for any reason the child is unable to attend that school, then the child is to attend such school as nominated by the mother.

1. That in the event the child is to attend a primary school other than M Public School the mother is to advise the father in writing within 48 hours of her nominating an alternative school and such notification is to include:

(a)      The school the child is proposed to attend;
           (b)      The date the child is proposed to commence such school; and
           (c)      The address and telephone details of the school.

1. That the child attend a school as agreed between the parties for his secondary education from Year 7 provided that if the parents are unable to agree, then the child is to attend such school nominated by the mother.

1. That within 14 days of the date of these orders and within 14 days of the child’s subsequent enrolment at any school the mother is to do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time forwards directly to the father:-

(a)Copies of each school report and merit cards.

(b)Any written material pertaining to the child’s academic and extra curricular activities;

(c)Copies of all order forms for school photographs of the child and;

(d)Any special day to which parents are invited by the school being prize days, sports carnivals and parent teacher interviews.

1. That in addition to Order 19 hereof the mother is to forward to the father within 14 days of the date of receipt by her of the following items:

(a)      Copies of each school report and merit card.
           (b)      Copies of all order forms for school photographs of the child.

1. That within 14 days of the date of these orders and within 14 days of the child’s subsequent enrolment at any school the mother is to do all acts and things and give all irrevocable authorities necessary to ensure that, whichever school the child may attend from time to time, authorises staff members to discuss the child’s progress with either or both parents.

1. That each parent may attend any school at which the child is enrolled for the purposes of collection and delivery of the child pursuant to these Orders and also to attend any events to which parents are invited by the school including prize days, sports carnivals and parent teacher interviews.

1. That Ms Marlin and Mr Otif and their servants and agents are restrained from taking or sending or attempting to take or send the child P Marlin-Otif (a male) born … December 2002 from the Commonwealth of Australia without the written consent of Ms Marlin and Mr Otif or by order of the Court.

1. That the Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

1. THE COURT REQUESTS that the Australian Federal Police forthwith place the name of the said child on the Airport Watch List at all points of international arrivals and departures in the Commonwealth of Australia for the purpose of preventing removal of the child from Australia in breach of these orders and maintain the child’s name on the Airport Watch List until further order of the Court.

1. That notwithstanding Orders 23, 24 and 25 hereof neither the mother nor the father are to unreasonably withhold their consent to a request, on 60 days notice, by the other parent to remove the child from the Commonwealth of Australia for the purpose of attending an overseas holiday during periods the child is living with the other parent and to effect this order each parent is to execute a Minute of Consent Order at the time to enable an exception to the prohibition provided for in Orders 23 and 25.

1. That during any period which the child is living with each parent, in the event of the child being hospitalised or receiving urgent medical attention, the parent with whom the child is living at that time is to notify the other parent as soon as practicable (and in any event within two (2) hours) after the first contact with either the medical practitioner, medical centre or hospital including the details of the illness, injury, the treating doctor and the prognosis and treatment including prescribed medication of the child if it is known.

1. The each parent is to keep the other informed as soon as is reasonably practicable of:

(a)Any non-urgent medical problems or illness suffered by the child; and

(b)Any medication that has been prescribed for the child or over the counter medication administered to the child for any non-urgent medical condition.

1. That the mother and father are to consult with each other in relation to the non-urgent attendance of the child on any medical specialist and in the event that there is a dispute over the selection of the medical specialist the mother is to be solely responsible for nominating which medical specialist the child is to consult and that such medical specialist includes any specialist medical practitioner; dentist; orthodontist; speech pathologist; occupational therapist or other therapist (hereafter referred to as “consultant”) PROVIDED THAT:

(a)In the event that the child is referred to any such consultant, the mother is to inform the father in writing as soon as practical of any specialist appointments;

(b)That the mother as soon as possible after the initial appointment is made and prior to the first appointment authorise the consultant to discuss such matters with the father;

(c)That the father is permitted to attend on such appointments, such attendance or attendances to be at the sole discretion of any consultant and such attendance may be in person or by telephone or other electronic device; and

(d)That the mother do all acts and things to ensure that the father is provided with copies of any test results, letters of referrals, reports, and letters received from and by any such consultant.

1. That the mother and father are restrained from allowing the child to consult with or attend for psychological treatment unless otherwise agreed by both the mother and father in writing.

1. That neither the mother nor the father are to enrol the child to participate in any extra curricular activity that would require the child to attend when the child would otherwise be living with the other parent without the written consent of the other parent.

1. That the mother and father are to continue to maintain a communication book which is to pass between them with the child at changeover and in which each parent is to note and record any items of significance or items which are required to be communicated between them for the purpose of the child’s welfare or to comply with these orders and each parent is to ensure that such communication is confined to such matters and is polite and courteous.

1. That the child be known as P Marlin-Otif and that both parents do all acts and things necessary to ensure that the child is enrolled, noted, registered and identified as P Marlin-Otif.

1. That leave is granted to the Independent Children’s Lawyer to forward to the Department of Community Services:-

(a)A copy of the report of Dr B;

(b)      A copy of these orders;

(c)A request that such documents be placed with the records of the child.

1. That except for any appeal against these orders, a Judge be appointed to manage any further application filed by either parent in relation to the child and that UNTIL FURTHER ORDER that Judge be Justice Flohm, if she is reasonably available.

1. That pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.

1. That all outstanding applications are dismissed and removed from the Pending Cases List.

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

)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 606  of 2006

Ms Marlin

Applicant

And

Mr Otif

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Ms Marlin (“the mother”) and Mr Otif (“the father”) are the parents of P Marlin born in December 2002 (“the child”).  Each parent seeks orders which reflect their opposing view of what is in the child's best interests. 

1. The mother seeks orders that she remain as the child's primary carer and that any time the child spends with the father should be restricted in both frequency and duration to an arrangement which will minimise a level of conflict between the parents which has adversely affected the child's development and wellbeing.

2. The father too seeks orders that the child remain in the mother's primary care, but seeks a parenting arrangement which will provide the child with an opportunity to spend as much time with the father as possible, seeking in excess of that proposed by the mother and including periods of block holiday contact. 

3. Both parents acknowledge a high level of conflict between them which has manifested itself in an inability to communicate over a number of years about matters relating to the child's welfare and when communication does occur, an inability to reach an agreement in relation to important matters such as health and education. 

4. The mother proposes that this impasse be overcome in the future by an order in her favour for sole decision-making responsibility about the major issues in the child's life.  The father, on the other hand, proposes that both parents be responsible for such decisions but that court orders themselves attempt, as far as possible, to address the manner in which any future decision-making might occur. 

5. It should be noted that this case has been heard in the Magellan program because the mother filed a Notice of Abuse on 23 May 2006 raising concerns about the father's conduct towards the child of a sexually and physically abusive nature.  When the hearing commenced in July 2007 the mother did not pursue those allegations and indeed since January 2007 had been seeking orders which provided the father with unsupervised overnight contact of a limited nature with the child.  More will be said during the course of the judgment about the mother's change of position and what, if anything, that change says about the genuineness of her belief that the child had been abused and her motive in pursuing that position beyond the release of the Magellan report.

6. It is argued by the father that the mother's motives in raising allegations of abuse have been to eliminate the father from the child's life and in her efforts to achieve this malevolent outcome she has been prepared to expose the child to a level of involvement by professionals which amounts to systems abuse of the child. 

7. The mother argues that she personally has never alleged abuse by the father of any kind, rather that she has repeated statements by the child and has raised with professionals concerns about a change in the child's conduct which may or may not have been consistent with such abuse.  That is, in my view, a very artificial distinction raised by the mother.  Allegations of sexual or physical abuse made by a parent in Family Court proceedings invariably consist, in my experience, of a parent doing precisely that: relating to authorities and to the court statements made by a child and changes in a child's behaviour as evidence of abuse.  It is very rarely the case that an allegation of this nature is raised by a parent because they have personally witnessed the abuse, although occasionally reports of abuse are relayed to them by other adults.  However, as I have noted, more will be said about this later in the judgment.

The Relevant Background

1. The material filed contains a number of factual issues, which will be addressed in the course of the judgment.  The essential background of the case is as follows.

2. The father was born in 1966 and he is 42 years of age.  The mother was born in 1966 and she is 41 years of age.  In April 2001 the parties were married and in December 2001 the parents separated although they continued to see each other until April 2002.  In August 2002 the mother attended upon a counsellor for assistance in her relationship with and communication with the father.

3. In  December 2002 the child was born and he is 5 years of age.

4. In 2003 parenting proceedings between the parents were conducted at the Camden Local Court and orders were made by consent on 15 May 2003 that the child live with the mother and have contact with the father each Sunday between the hours of 2.00pm and 4.00pm at the mother’s residence.

5. On 4 June 2003 the father made a report to the Department of Community Services (“DOCS”).  DOCS closed its file without assessment.  In July 2003 the mother and child were admitted to a Tresillian Unit to assist the child with sleeping and settling.  In 2004 the parties divorced.

6. In March 2004 the parents and the child undertook parentage testing procedures.  On 6 December 2004 further parenting orders were made by consent in the Federal Magistrates Court (“FMC”) at Parramatta.

7. Between December 2004 and December 2005 the mother says contact proceeded in accordance with the orders, with the maternal grandfather facilitating contact changeovers.  On 18 June 2005 the child commenced overnight contact with the father. 

8. In August 2005 the mother attended, but did not complete, a Parenting After Separation Course through Centacare.  In December 2005 the mother attended a “1-2-3 Magic” Course to assist with managing the child’s behaviour.

9. In January 2006 the mother alleged she observed increasingly challenging behaviours in the child following contact periods, including difficulties with sleeping, temper tantrums and soiling his pants.  On 20 February 2006 the mother alleged that the child climbed into bed with her and began to rub his tummy and began pushing his hands down into his nappy saying “this is what [S] does”. 

10. On 11 March 2006 the child commenced spending time with the father on alternate weekends from 9am Saturday until 5pm Sunday and from 5pm Monday until the commencement of preschool on Tuesday in the intervening week.

11. On 12 March 2006 the mother alleged the child said to her “I have got a stick in my bottom and it hurts”.  The mother said that the child also began to stick his finger in his bottom and smell it.  On 20 March 2006 the mother said the child soiled his pants after spending time with the father.

12. The mother said that in April 2006 the child was displaying sexualised and violent behaviour after spending time with the father and on 7 April 2006 she reported that behaviour to DOCS.  DOCS closed their file without assessment.

13. On 10 April 2006 the mother reported to DOCS that the child was displaying aggressive behaviours and had started wetting his pants.  On 11 April 2006 the mother took the child to her General Practitioner who referred the child to counsellors and a paediatrician.  The father alleged that on 13 April 2006 the mother refused him 4 days and 5 nights of contact.

14. On 13 April 2006 the mother took the child to see Dr F, paediatrician.  On 14 April 2006 the mother made a further report to DOCS.  On 19 April 2006 the mother alleged that the child said to her “[S] hit me on the bottom and punched me but [X] looked after me.  I want to live with you mummy, I don’t want to live with [S] and just visit you”.  The mother made a further report to DOCS on that date.

15. The father alleged that on 22 April 2006 he had missed 2 days and 1 night of contact with the child due to the mother refusing to allow the child to attend contact.

16. On 27 April 2006 the mother made a further report to DOCS.  On 29 April 2006 the mother filed an Application for Final Orders in the FMC at Parramatta.

17. During May 2006 the mother made several reports to DOCS in relation to alleged sexualised and violent behaviour by the child after the child returned from contact with the father and allegations of sexual abuse of the child by the father.  A Joint Investigation Response Team (“JIRT”) investigation was carried out and the allegations were not substantiated.

18. On 12 May 2006 interim parenting orders were made by Judicial Registrar Halligan in relation to changeover arrangements.  On that date the child was taken by the maternal grandmother to see a counsellor, Ms D.  On 23 May 2006 the mother filed an Amended Application and a Notice of Child Abuse in the FMC at Parramatta.

19. From May to November 2006 the maternal grandfather facilitated contact changeovers.  Between June 2006 and December 2006 the father alleged the mother failed to provide the child for contact on many occasions.  Between June 2006 and December 2006 the mother made several reports to DOCS about alleged disclosures by the child of abuse and about the child’s sexualised behaviour after spending time with the father.

20. In August 2006 the parents agreed on the appointment of Dr B as the court expert and, together with the child and extended family members, attended upon Dr B in September 2006 for the purpose of his assessment and report.

21. On 22 November 2006 the father filed an Application for Contravention.  On 11 December 2006 the father filed an Amended Application for Contravention and a further Application for Contravention.  On 15 December 2006 orders were made by the FMC for contact changeover to occur at … Centacare.  On 15 January 2007 the father filed a further Application for Contravention.  On 5 March 2007 the father’s Applications for Contravention were adjourned to 6 August 2007.

22. The substantive proceedings were listed for final hearing in the FMC on 24 and 25 January 2007 at which time the proceedings were transferred to the Family Court. 

23. On 1 February 2007 the Family Court ordered the preparation of a Magellan Report and that report was released to the parents on 16 March 2007.  The final hearing in the Family Court commenced on 13 July 2007.

The Parties' Applications. 

1. The mother filed an Application on 29 April 2006.  At the commencement of the hearing the mother provided to the court a document entitled "Orders Sought by the Mother", and that remained her position throughout the hearing until her written submissions supported orders proposed by the Independent Children's Lawyer.  That was a very significant departure from her original position. 

2. The father filed a Response on 4 May 2006 and an Amended Response on 4 April 2007.  By the time the hearing had concluded the father had altered his position from that reflected in his Amended Response.  He was not opposed to an order for primary residence in favour of the mother, however he sought to spend as much time with the child as possible, citing the contact referred to in the final consent orders of December 2004 as minimum periods.  He also requested the court to make the orders “as tight as possible” so there could be no misunderstanding as to what was required of each party.  Significantly, he sought an order that in the event that the mother again raised an allegation of sexual abuse by the father of the child, then the orders should provide for the matter to come back as a matter of urgency before this court and before me, if possible.  The father made it clear that his concession that a residence order in favour of the mother could be made was at this time on the basis that she could be relied upon not to again raise allegations which have been demonstrated to be without basis, and relied upon not to expose the child to what the father refers to as the “systems abuse” arising from the making of and the investigation of those false allegations. 

3. Just prior to the conclusion of the hearing the Independent Children's Lawyer tendered to the court a document, exhibit ICL7, which set out the orders sought by the Independent Children's Lawyer.  I incorporate that document into this judgment.

The Matters in Issue

1. The mother provided affidavit evidence and was cross-examined, as was the maternal grandfather Mr M, who supports his daughter and the orders she seeks.  The mother's case, as it unfolded, contends that the orders she seeks are in the child's best interests because:

   (i)The mother has great difficulty communicating with the father on matters relating to the child by virtue of the father's controlling personality, and any attempt at such communication inevitably triggers conflict. 

   (ii)The mother develops a high level of anxiety if it is necessary for her to communicate with the father on matters relating to the child. 

   (iii)The more extensive and frequent any time the child spends with the father, the more the need for communication between parents and, correspondingly, the more conflict that will be engendered.  For this reason the child's time with the father should be restricted to the brief weekend period proposed by the mother and that any parenting order should include no periods of block contact.

2. The father provided affidavit material and was cross-examined, as was his mother, Mrs O, who supports the orders sought by her son.  As the father's case unfolded before me it became clear that he contends that the orders he seeks are in the child's best interests because:

   (i)The mother has not involved him in important decisions in the child's life to date.

   (ii)The mother has not complied with court orders by providing the child with an opportunity to spend time with the father pursuant to those orders.

   (iii)The mother has knowingly raised false allegations of sexual abuse against the father.

   (iv)By virtue of the matters set out in (i), (ii) and (iii), the mother has sought to marginalise the father in the child's life and has sought by virtue of the sexual abuse allegations to completely sever the father/child relationship.

   (v)Notwithstanding the matters set out above, the father has never wavered in his determination to remain part of the child's life, persevering through periods of no contact and periods of supervised contact to establish and develop a close and loving relationship with the child. 

3. Those then are the matters in issue between these parents. 

4. I turn now to the evidence before me which is relevant to those issues and relevant to my ultimate determination.  However, something should initially be said in this case about the witnesses and the reliability of their evidence.  Although there are some factual matters in dispute, I have ultimately come to the view that each of the parents and each of their supporting witnesses have done their best to provide to the court an accurate account of events that have occurred in the past.  Whilst those versions cannot always sit comfortably together, I am satisfied that they are described to the court as they are perceived by each of the witnesses.  As is often the case following separation and in ensuing disputes in family law matters, recollection of past events differ and there is always a tendency to exaggerate or embellish on one hand or minimise or dismiss on the other certain events, depending on whether or not they support a witness' position at the hearing.  Ultimately I am satisfied that none of the witnesses who gave evidence before me have attempted to deliberately mislead the court. 

The Evidence

1. I certainly do not intend to set out all the evidence in this case, but there are a number of issues which require the court's examination and determination.  The evidence will be discussed within the context of the legal principles relevant to this case to which I now turn.  

The Relevant Legal Principles to be Applied

1. The legal principles relevant to the determination which I must make are the following sections of the Family Law Act:

s.60B which is the section which deals with the objects of the part of the Act which deals with parenting orders;

s.60CA which is the section which states that the child’s best interests are the paramount consideration in the making of a parenting order.

s.60CC which provides guidance as to how a court determines what is in a child’s best interests, including primary considerations for the court and additional considerations for the court.

s.61DA which provides for the presumption of equal shared parenting responsibility when making parenting orders, and the circumstances in which that presumption may be rebutted.

s.61B which explains the meaning of parental responsibility.

s.65DAC and s.65DAE which deals with the effect of a parenting order that provides for shared parental responsibility.

s.65DAA which deals with the obligation of the court in certain circumstances to consider a child spending equal time or substantial and significant time with each parent.

1. I turn now to the application of those legal principles to the facts in this case. 

   The Primary Considerations:

2. Firstly, I will deal with the Primary Considerations set out in s.60CC(2)(a) and (b).

(a)The benefits to the child of having a meaningful relationship with each parent.

1. The child, like all children everywhere, will benefit from a meaningful relationship with each of his parents.  The challenge for the Court in this case is to determine whether or not that outcome can be achieved and if so, how.  It seems to me that this is a case, as in many others, that determination will be assisted by firstly considering the other primary consideration set out in s.60CC(2)(b) as well as the matters set out as additional considerations in s.60CC(3).  Accordingly, I reserve my determination in relation to s.60CC(2)(a). 

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

2. This issue is now not relevant to these proceedings in circumstances where the mother did not at the hearing proceed to press her allegation of the father’s sexual abuse or physical abuse of the child. 

3. Next, I will deal with the Additional Considerations set out in s.60CC(3).

   S.60CC(a):    The Child’s Views:

4. The child is very young, just commencing school.  In those circumstances and particularly so where the child has himself been involved in and/or exposed to open conflict between the parents or the respective family members, no weight could be placed upon any view expressed by the child.  That is clearly a view shared by Dr B who did not attempt to canvass that issue, focusing instead on assessing the quality of the relationship between the child and each of his parents. 

   S.60CC(b):    Nature of the relationship of the child with each parent and other persons.

5. This is not an issue in these proceedings.  Each parent acknowledges that the child has a close and loving relationship with the other parent and that he enjoys the time he spends with each of them.  That position is clearly verified by the contents of Dr B’s report which was not challenged. 

S.60CC(3)(c) – Each parent’s willingness and ability to encourage the child’s continuing relationship with the other parent.

1. On 6 December 2004 the parents agreed on final parenting orders whereby the child would live predominantly with the mother and have contact with the father on a regular basis.  But given the child's age at the time, it was a program which was to build up gradually to overnight, weekend and block holiday contact.  Before that ultimate arrangement could be reached a number of events, seen differently from the point of each of the parents, precluded the program being put into effect.  At one stage contact was suspended by the mother for a considerable period in the context of the mother being concerned about the child's sexualised behaviour and the child's statements about sexually inappropriate activities in the father's household.  These concerns are now not raised by the mother as part of her case in these proceedings.

2. There have also been a number of one-off occasions when the child has not had contact with the father.  These are all listed in the father's affidavits in the context of him pointing out other examples of the mother's determination to exclude him from the child's life.  Whilst it is likely, in my view, that a number of the excuses provided by the mother were valid, it is likely a number were not.  The latter can then be further divided into categories.  On at least two occasions when it was claimed the child would not go on contact the maternal grandfather prevented the child from going. On other occasions, the mother was unable to cope with the anxiety caused by dealing with the child's behaviour and the conflict associated with the child moving between the two households. 

1. Since approximately the beginning of 2007 contact on a regular basis has occurred in accordance with interim orders made about that time and there has been no real complaint by the father that the mother has not made the child available.  Rather, his complaint has been that the time the child spends with the father has been restricted both in frequency and duration.  It is very understandable that the father has been frustrated and angered by the mother's non-compliance with past court orders and her raising of allegations which have, as he argues, been unsubstantiated on a number of occasions by investigating authorities and ultimately abandoned by the mother but not until this hearing commenced.  However the contact that the father has had with the child, and particularly since early 2007, has enabled the child to develop a very close and loving relationship with his father.  Whilst the mother's raising, then abandoning, serious allegations will be discussed, where relevant, later in the judgment, I am satisfied that the mother does value the child's relationship with the father and I note that although at the conclusion of the hearing the mother was seeking contact of one overnight per fortnight and no block holiday contact, her ultimate position incorporated into her written submissions is that the child live with the father for periods which include three consecutive overnights each alternate weekend in 2008 and block holiday contact of up to two weeks.  I am satisfied that she has been committed since early 2007 to supporting the relationship between father and son. 

S.60CC(3)(d) – The effect of a change to the child’s circumstances.

1. For the five years since his birth the child has lived with his mother.  His parents have not lived together since his birth.  No-one in these proceedings is seeking to change the child's primary residence, but there are various proposals before the court as to how much time the child should spend with his father in the future.  Since early 2007 the child has seen his father regularly and has a very close relationship with him.  Whether I make the orders sought by the mother, the father or the Independent Children's Lawyer or somewhere in between, there will be no change to the child's current circumstances to which he could not adjust given his strong relationship with each of his parents. 

S.60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with both parents.

1. This section is not relevant to these proceedings. 

S.60CC(3)(f) – The capacity of each parent and other relevant persons to provide for the child’s needs, including emotional and intellectual needs. 

1. There is no issue in this case about each parent's capacity to provide for the child's physical needs, including day-to-day care and supervision, in circumstances where it is agreed the mother will remain the child's primary carer and the child will live with the father during the weekends and school holidays for some as yet undetermined period.  Similarly, there is no evidence before me, nor is it argued, that one or other parent lacks the capacity to provide for the child's intellectual needs.  There is, however, a question mark over each parent's capacity to provide for the child's emotional needs. 

2. In circumstances where the child has been obliged to, and will continue to, move between two households where there is an extremely high level of conflict and where there has been, on the evidence of both parents, a total breakdown in their ability to communicate with each other about matters relating to the child, I am satisfied that the conflict and lack of communication was highlighted to the child in the period 2005/2006 when contact changeover was occurring outside the contact centre and family members were involved in that process.  I am satisfied that the child's disturbed behaviour at that time, as clearly identified by the mother, is likely to be a reflection of the pressure placed upon the child by the conflict between his parents generally and the contact changeovers in particular. 

3. A more detailed discussion in relation to the lack of communication and the conflict between these two parents will be discussed later in the judgment, but suffice it to say for the purpose of the subsection under discussion that neither parent can escape some blame for the high level of conflict between them exacerbated to a very large degree by some extraordinarily insensitive conduct by the child's maternal grandfather. 

4. Accordingly, both parents have demonstrated that their capacity to meet their child's emotional needs, which in all other circumstances has been excellent, has been severely comprised by their inability to quarantine the child from the conflict between his own parents and other family members.  It is part of the father's case that the allegations raised by the mother, based upon behaviours and statements which she attributes to the child, that the child has been exposed to or the victim of inappropriate sexual conduct in the father's household, has all been fabricated by the mother in a malicious attempt to interfere in the relationship between the father and son and ultimately deprive the child of an opportunity to spend time with the father.  That assertion is denied by the mother but it requires, in my view, an examination of the evidence surrounding the raising and then abandoning of the sexual abuse allegations by the mother. If the father has made out his case in this regard, it is a clear demonstration of the mother's emotional abuse of her son not only because it reflects a desire to destroy the child's relationship with his father, but also because it has unnecessarily involved the child with a number of professionals with the purpose of obtaining the mother's own ends.  In relation to the latter, the father has listed in great detail the number of professionals to whose intervention the child has been exposed because of the mother's allegation.  Most, but not all, of that list is conceded by the mother.   

5. The mother's affidavit sets out a chronology of events that seem to have started around the middle of December 2005.  She says that the child started displaying temper tantrums, that he would not sleep, that he was soiling his pants.  He fluctuated between being aggressive and withdrawn and always seemed overtired.  At this time she noticed there was a red/blue ring around the child's anus.  She says that by the end of January 2006 she noticed the ring was a dark reddish blue and the child's clinginess to her and tantrums were continuing.  The mother says that in early 2006 the child was having problems with quite severe constipation and the blue ring around the anus made a regular appearance.  She says that in February 2006 the child made statements about him going to live with his father, which caused her to think that the Family Court issues were being discussed with the child by the father or in his household.  On 20 February 2006 comes the first statement the  mother attributes to the child.  At the time he was rubbing his tummy and putting his hand down his nappy and he said to her this is what S does.  In mid-March 2006 the child said, "I've got stick in my bottom," and he was touching his anus and smelling his fingers.  On 4 April 2006 the mother observed the child with a glove on his hand and playing with his genitals, accompanied by a statement that at the doctor's they looked at his bottom. 

6. The following day there was an unpleasant incident between the adults at changeover and on 6 April 2006 the mother approached DOCS about the conflict at changeover and the impact that may be having upon the child.  In the following days the mother provided DOCS with more information about the child's unusual behaviours and statements and on 11 April 2006 she consulted a general practitioner about the child's behaviour and statements and she was referred to Dr F, a paediatrician.  The mother says that on the day she was referred to Dr F she was also referred by her GP to a counsellor who told her, presumably on the phone, "You need to stop contact."  The mother says that on 22 April 2006 the child said that X - that is the father's girlfriend's child - punched his genitals.  On 25 April 2006 the child said that S, which is what he calls his father, shaves his own bottom and that the child has seen it.  At the same time the child, with a gloved hand on his penis said, "[S] does this to himself." 

7. According to the mother on 4 May 2006 the child was pulling and rubbing his penis and said to the mother, "[S] does it to me."  On 6 May 2006 the child said that S locks him in a room and hits and punches him and on 11 May 2006 the mother saw the child naked on the floor playing with his genitals.  The mother says that on 11 May 2006 the child told her that he and X watch S and Ms E - that is the father's girlfriend - in bed with no clothes on in the daytime and that the child himself goes under the blankets with S when they are both naked and S touches him “here” (pointing to his genitals).  Two days later the mother again observed the child with a rubber glove on his hand touching his penis.  He was also holding a sponge.  The mother's affidavit clearly sets out the number of professional organisations, including DOCS and the police, to whom she reported the child's statements and to whom she described the child's actions and his disturbed behaviour.  In some period after May 2006 the mother says that the child told her that someone “checked his bottom” at a party that his father took him to.  At the same time he also made a statement about the mother being in trouble and going to gaol, suggesting to the mother that he had overheard discussion of the Family Court proceedings.  On 25 May 2006 the child told the mother that S bit his penis.  That statement triggered further contact by the mother with DOCS and the police.  The mother says the police told her not to send the child on contact.  An interview with JIRT was arranged for 22 June 2006.  There was nothing said during that interview by the child which concerned the authorities.  

8. It is important to note that on 26 June 2006 the child had an operation for a hernia and an undescended testicle, the latter condition having been a physical characteristic of the child since birth.  There is no doubt that as a result of this the child has been the subject of numerous medical examinations of his penis and genital area generally.

9. From 30 June 2006 onwards contact occurred, but on 6 August 2006 the mother says the child was on the bed wearing gloves and appearing to masturbate.  The mother says he told her that, "[S], [X] and I sit in the cubbyhouse and play with our penises.  [S] cleans up with baby wipes.  [S] has white stuff on him."  That statement is reported to the police  and to DOCS by the mother and the mother says that the following day DOCS rang her and told her not to send the child on contact with the father. 

10. However, on 10 August 2006 the mother was told that JIRT would not be interviewing the child again.  On 14 September 2006 the mother was advised that the police would be taking no action.  Thereafter, the mother describes a child who continued to be clingy with her and very anxious on separation and a child who continued to make statements about the father.  The mother says that on 31 October 2006 the child told her that S puts his fingers in his bottom.  On 3 November 2006 he said that S smacks him.  On 13 November 2006 there was another difficult changeover involving family members and the police were ultimately involved.  In November 2006 the mother contacted a contact service to arrange for changeover to occur in a professional environment.  On 18 November the incident which is the subject of the father's video occurred.  That is in evidence before me; a video which shows the maternal grandfather behaving in a way that reflects very poorly upon him and it must be said that this is a person who has contributed greatly to the conflict between the families and a person who appears to have no concern whatsoever that the child is “centre stage” in that conflict.  On 2 December 2006 the first contact was arranged with changeover at the contact centre and, although on that first occasion the child wouldn't go with the father, the following fortnight and thereafter he did go with the father. 

11. The mother makes it clear that all the difficult behaviours she observed, which were unusual behaviours for the child, and all the statements made by the child about the activities in the father's home many of which were acknowledged by the mother as “fanciful”, occurred in the period between 10 December 2005 when contact changeover began to occur at one or other family home and the resumption of contact at a contact centre in December 2006.  In explaining her own actions over that 12-month period the mother insists that she has never accused the father of sexual abuse.  She insists that all she has done is raise the matters which concerned her with the authorities, including the court, hoping for an explanation for the behaviours.  The mother's oral evidence is that, looking back, she sees that she overreacted during the 12-month period.  There was no sexual activity she had actually seen and certainly had never seen any marks and bruises on the child.  But she says that there was so much conflict between the parents and the father had been sexually abusive towards her in the relationship.  She says that the conflict “went up a notch” when the father accused the mother of physical abuse of the child. 

12. Not only does the mother concede that, in retrospect, she was overreacting, she agrees the child could have been reacting to her anxieties and concerns.  The mother says that since she received Dr B’s report, which I believe was in November 2006, she has been reassured that any concerns she may have had that the father was behaving inappropriately towards the child have been put to rest.  Since January 2007 she has not sought court orders that the father's time with the child be supervised, although I note that since then the father's contact continued to be supervised by his mother. I put that down to a misinterpretation by the father of the orders who was unrepresented at the time of the January 2007 consent orders. 

13. Included in the mother's oral evidence is a statement that “deep down” she feels that something has happened to the child of a sexually abusive nature, but that she is now directing herself to help the child deal with it by telling him to: “Say you don't like it and don't do it.”  She says that she has wondered whether her attitude to the father has caused the child to be selective when he talks about his experiences with the father.   She says that if she says something positive about the father the child is surprised and changes the subject.  She believes this is because the child has never known anything but conflict between his parents. 

14. The mother's evidence, which I accept, is that apart from examination for the purpose of his undescended testicle, she has otherwise not initiated the child being physically examined as a result of any allegation of abuse raised by her. 

15. In relation to the allegations of sexual abuse, a Magellan report was prepared on 15 March 2007 which informs the court that as of May 2006 17 child protection reports about the child had been made, 10 of which refer to allegations of sexual harm.  These allegations were the subject of a JIRT interview in June 2006.  The report states that for the purpose of the investigation the mother was interviewed, as was the child, as was Ms D, a child psychologist with whom the mother and child had had some contact, as was the Childcare Centre where the child had been attending for a considerable period of time. 

16. The Magellan report states that the child disclosed no information which would raise concerns that he had been exposed to or was the victim of sexual harm.  JIRT's contact with the psychologist and the Childcare Centre did not provide any information which raised concerns about sexual harm.  The child's attendance at the organisations referred to had not involved any disclosures or behaviours of concerns such as had been reported by the mother to DOCS.  The Magellan report concluded that no harm was able to be substantiated.  The report states that despite the mother providing information during the JIRT investigation of the behaviours being displayed by the child, no other person had observed such behaviours.  While the child's contact with Ms D was relatively recent, it is pointed out that the child had been in childcare for the preceding approximately eight months and there was no record by that organisation that any of these behaviours had been observed during his attendance there.  I accept the evidence in the Magellan report.

17. Dr B, the court appointed expert, interviewed the parents and the child in September 2006.  There is no doubt that at the time of the assessments the mother told Dr B about the child's behaviours and statements, adding that she felt the half hour interview by JIRT was not adequate and that whilst the child did not disclose anything to JIRT, "No-one can say.  I can't live with the fear of what did or didn't happen." 

18. The mother told Dr B that she wanted the father to have supervised contact only and that the child should not be alone with the father.  She said that she would prefer that there was no contact at all until a proper investigation had been done. 

19. Ultimately the sexual abuse issues are dealt with as follows in Dr B’s report, significant in circumstances where the mother says that following the release of Dr B’s report she abandoned any allegation of inappropriate conduct towards the father.  Dr B says on page 15:

    “I believe that the sexual abuse allegations have developed in the context of high acrimony and poor communication.  There is obsessionality particularly in the father as well as high anxiety in the mother.  I believe that the mother's concerns initially were innocent and that she was hoping that by raising her concerns, then she could be reassured.  However, naively, she didn’t realise that there was no absolute way of confirming or refuting sexual abuse in the majority of cases.  I formed the view that it is highly unlikely that [the child] had been sexually abused or was at risk of sexual abuse.  I believe that the fears of abuse stem from the mother's difficulty coping with [the father’s] overbearing nature, her fears for [the child] and her need to try and find a way to cope with the situation.  Unfortunately, as time passes [the mother] appears to have become more concerned about sexual abuse.”

20. As part of his summary, Dr B says at page 16:

    “[The child] has developed a good relationship with both parents.  There were orders for increasing contact.  It would appear that at the time [the child] was due to have contact with his father for block periods that the relationship broke down.  There was increasingly anxiety and poor communication.  [The mother] felt criticised and bullied by [the father].  [The child] was experiencing some distress, probably from the strain and conflict between the parents.  However, he showed some sexualised behaviour.  I believe that the sexualised behaviour was probably normal for a 3 or 4 year old behaviour.  [The mother] didn’t know how to interpret the behaviour and I believe asked innocently what the explanation for this behaviour was.  It was investigated by JIRT.  [The mother] attempted to be balanced to try and explain these behaviours.  [The father] took offence that these allegations had been made.  I formed the view that the allegations would not have reached a high level of dispute if the couple had been able to discuss their management in a less belligerent way.  I do not believe that the allegations were malicious or that [the mother] had the intention of trying to sabotage the relationship between [the child] and his father.” 

1. I accept that evidence of Dr B which was unchallenged. 

2. I can fully understand the father's position.  Regardless of the mother's protestations that all she has ever done is bring to the attention of the authorities and the court statements made by the child and sexualised behaviour demonstrated by the child, and her protestations that it should not be seen as her making accusations of sexual abuse against the father, that is a very naïve approach.  In my experience, that is normally how allegations of sexual abuse are made by one parent against the other, i.e. the authorities and the courts are made aware by one parent of statements made by a child which are incriminating of the other parent.  No other interpretation can be placed upon the mother's assertions, particularly by the father who has been unrepresented in the proceedings, other than that the mother was accusing him of sexually abusing his son. 

3. I can also understand the father's position, and his argument, that if it was indeed the case that, as the mother now asserts, Dr B’s report reassured her in relation to the father's conduct towards the child - and indeed it must be said that not long after the release of the report the mother consented to unsupervised contact - that she has since filed a Notice of Abuse and on the release of the Magellan report on 15 March 2007 the mother's lawyer expressly informed this Court that the mother would include as part of her case the allegations of sexual abuse against the father. 

4. However, taking into account all of the evidence before me and particularly the unchallenged evidence of Dr B to which I have just referred, which attributes to the mother a motive of naively trying to find out what had happened as opposed to maliciously pursuing the father, the evidence falls short of the father establishing his case that the mother, by raising and then abandoning the allegations of sexual abuse, has been malicious and deliberately acting to interrupt and ultimately destroy the relationship between father and son.

5. Having said that, I am also satisfied that the mother's handling of the child's statements and behaviours was inappropriate, involving him, as she did, with as many authorities as she did without seeking to reality test his statements.  It is difficult to understand why the mother is able to concede, in retrospect, that she has overreacted when that sort of insight at the time might have avoided a considerable amount of professional intervention in this little boy's life.  Whilst her general management of the disclosures and sexualised behaviour reflects poorly upon her parenting, again the evidence falls short of satisfying me that it was the conduct of a parent who was thus emotionally abusing her child.  It should be borne in mind that one of the avenues available to other parents in such circumstances was not available to this mother; that is, an opportunity to raise the child's statements and behaviour with the other parent.  Not only was there no communication between the parents at the time, there was a very high level of conflict.  I have absolutely no doubt, as the mother asserts, that she was fearful of the father's reaction if she shared the information with him.  I am satisfied that those fears were justified and I am satisfied that the father's reaction would have been angry and belligerent, the sort of reaction, I am aware on the evidence before me and the father's presentation in court, is a reaction characteristic of the father whenever any criticism is made of any aspect of his parenting of the child. 

S.60C(3)(g) – Issues relevant to cultural and lifestyle background of the child and the parents.

1. The father came to Australia from Europe as a child of three and he was joined by other family members in subsequent years.  He currently lives with his mother, who speaks Hungarian and very little English.  Accordingly, the child has a rich and diverse ethnic background and will clearly benefit from and indeed is entitled to an opportunity to learn about the cultural background and language of each of his parents.  Given the parties' ultimate positions in this case, I am satisfied that, whatever orders are made, there will be ample opportunity for the child to learn about his continental European background and language, as well as that of his Australian mother. 

S.60CC(3)(h) – Aboriginal or Torres Strait Islander heritage.

1. This section is not relevant to these proceedings. 

S.60CC(3)(i) – The attitude of each parent to the responsibilities of parenthood.

1. The mother's and the father's respective attitudes to the responsibility of parenthood have already been discussed in part in s.60CC(3)(c) and (f) above.  In addition thereto, there follows later in the judgment a discussion relevant to s.65DAA of the conflict and lack of communication between the parents pursuant to s.65DAA.  That too is relevant to the attitude of each parent to the responsibilities of parenthood. 

S.60CC(3)(j) – Family violence involving the child or child’s family member.

1. This section not relevant to these proceedings. 

   S.60CC(3)(k) - any family violence order that applies to the child or a member of the child’s family.

2. The mother obtained an AVO order on a past occasion.  There are no current AVO orders. 

S.60CC(3)(l) – Order to avoid further litigation.

1. Both parties set out in some detail in their affidavit material the amount of litigation there has been between them.  These include an application for parentage testing by the father, an application for an AVO by the mother, various parenting applications of a final and interim nature in this court, including contravention applications by the father.  Each parent complains that they are worn down by the extent of court appearances and, not unnaturally in this case, each parent blames the other for the proliferation of litigation. 

2. It is an interesting aspect of this case that when it started the parents' positions were diametrically opposed.  The father was seeking a residence order in his favour and a period of some four months to allow the child to settle in together without the child seeing the mother at all.  The mother was seeking a sole parental responsibility order, a continuation of a residence order in her favour and an order that the child spend one overnight per fortnight with the father and that the child be so restricted for the remainder of his childhood.  She also opposed any orders for any block contact between father and son or indeed any telephone contact in the period between the fortnightly overnight stay. 

3. However, by the conclusion of the proceedings - and by conclusion I mean the receipt of the written submissions by each of the parents - it seems that there is now quite a different situation.  There is no opposition to the proposal that the child remain in the primary care of the mother.  There is no opposition to the proposal that the child spend at least three consecutive overnights each fortnight with his father.  There is no opposition to the proposal that the child spend at least one week of the midterm holidays with his father and two weeks in the Christmas holidays.  And there is no opposition to a proposal for regular telephone contact between the father and child.  Further, there is no opposition to orders being framed in terms of the child living with each parent for specified periods, and there is no objection to the proposal that there be an order made for equal shared parental responsibility subject to an order that the mother have the final say about matters on which it is clear the parents are unlikely to reach consensus.  At the end of a very long case there is actually not a great deal for this court to determine in terms of a future parenting arrangement for the child. 

4. Can that give the court confidence that, in circumstances where the final orders I will make reflect a great deal of agreement between the parents on almost all of the issues the subject of the litigation, that there will be no further litigation?  I simply cannot answer that question.  The orders proposed by the Independent Children's Lawyer, which have been for the most part accepted by each of the parents, have attempted to cover every base in relation to issues that may arise in the future and to allocate the final say to the mother if there is to be any disagreement in the future.  The father accepts that situation.

5. What has emerged during the course of the proceedings is an opportunity for the court to listen to the oral evidence of each of these parents and to reach some understanding, with the assistance of Dr B’s report, of the personalities involved.  With that evidence before me, I am simply unable to speculate as to whether or not there is an order available to me that would maximise a chance that this is final litigation between this little boy's parents. 

S.60CC(3)(m) – Any further relevant factors or circumstances.

1. There are no other relevant factors or circumstances which have not been covered in the proceding or following discussions. 

2. I return now to s.60CC(2)(a) and whether or not the court can achieve an outcome whereby the child will have the benefit of a meaningful relationship with each of his parents.  It will be clear from the findings I have made, particularly the findings in relation to the child's very strong emotional attachment to each of his parents, albeit that his mother is his primary emotional attachment, that the child does already have a meaningful relationship with each of his parents which benefits him greatly.  The problem for this child is the level of conflict between his parents and it is significant to note that all the evidence indicates that he has never known any other type of relationship or interaction between his parents.  It has always been highly conflicted and he has always been right in the middle of it.  He has been subjected to contact changeovers that have been very unpleasant indeed, as well as not being quarantined particularly well by either of his parents from their abuse of the other parent. 

3. The real risk for the child is that he will not be able to maintain a meaningful relationship with each of his parents if the conflict escalates in the future to a point where movement for this child between the two households becomes an impossible burden for him.  Then the only solution is that it cease.  That is not the situation at the moment, particularly given the orders now sought by each of the parents.  Accordingly, on all the evidence before me and the proposals of the parties, I am satisfied that there are orders available to this court at this time which will allow the child to continue to enjoy the benefits of a meaningful relationship with each of his parents. 

S.60CC(4) – Consideration of the extent of each parent’s fulfilment of their respective responsibilities as a parent.

1. In many respects these parents are responsible parents.  Where they fall down is in relation to their interaction with each other.  The mother certainly can be criticised for a number of occasions on which she has failed to involve the father in decisions she has made about the child's activities.  She has not discussed with the father her plans for the child's schooling or the child's confirmation in the Catholic Church.  She has not provided the father with an important document being a Developmental Assessment provided at the end of the child’s time in childcare before moving on to school.  She did not invite the father to attend the childcare graduation.  She has been less than conscientious in ensuring that the child is registered or enrolled at all times using his full name of P Marlin-Otif and she did not change the name accordingly at the daycare centre after the FMC ordered that be done.  The mother did, however, invite the father, through the contact centre communication book, to his school orientation but the father was unable to attend. 

2. I am not convinced of what might seem prima facie to be the mother's “thumbing her nose” at her obligations as one of two parents having responsibility for the long-term welfare of the child.  I am satisfied it is more a symptom of her lack of ability to communicate with the father, including an inability to provide him with information in the communication book.  That was the only form of communication between them as face-to-face and telephone contact had failed many years ago.  The evidence of each parties' contribution to the communication book makes it clear that the father was rarely, if ever, grateful for the receipt of information, but rather used it to ask a number of questions of the mother and/or criticise her handling of various issues. 

3. It is hard to be too critical of the mother in circumstances where I note Dr B's conclusions at page 16 of his report, which is:

   “Should the child be placed into the care of the father …… I would also have some concerns that [the father] would increasingly control [the child's] activities and that he would increasingly restrict the mother.”

   I accept that evidence which was unchallenged. 

   S.61DA - The presumption of equal shared parental responsibility when making parenting orders.

4. It is not proposed by the mother or the father or the Independent Children's Lawyer that the court do other than apply the presumption of equal shared parental responsibility in this case.  It is also agreed that that order should be made subject to other orders which identify specific areas where the mother is to have the final say if there is no agreement between the parties.  Accordingly, I intend to make the orders that there be equal shared parental responsibility subject to those non-contentious exceptions. 

   s.65DAA - Requires the Court to consider whether a child spends equal time or substantial and significant time with each parent in certain circumstances.

5. In circumstances where the Court intends to make an order for equal shared parental responsibility, as I do in this case, consideration must be given to whether the child is to spend equal time with each parent.  That is not proposed by either parent in this case.  It is then necessary for me to consider whether or not the child should spend substantial and significant time with each parent.  In so considering I must be satisfied that substantial and significant time with each parent would be in the best interests of the child and I must be satisfied that it is reasonably practicable to make such an order.  Substantial and significant time is defined in the Act to include weekends and school holidays and days that do not fall on weekends or holidays and times that allow the parents to be involved in the child's daily routines and times that allow the parent to be involved in occasions and events of particular significance to the child and times that allow the child to be involved in occasions or events of special significance to the parents. 

6. However, it must be stressed that making orders to take account of each of those occasions is not mandatory and will not apply in every case if each of those occasions is not in the best interests of the child.  Further, orders should not be made to include each of those occasions if it is not reasonably practical to do so.  Reasonably practical is defined by the Act to include how far apart the parents live, whether the parents have the future capacity to implement an arrangement for substantial and significant time with the child and whether the parents have the current and future capacity to communicate with each other and resolve difficulties that might arise implementing such an arrangement.  That of course leads me to a discussion of these parents' capacity to implement substantial and significant time by virtue of their capacity to communicate with each other and resolve difficulties that might arise.

7. I take into account the evidence before me of the communication book.  It is clear that when that passed between the parents, uncensored as it was, it was used by each for entirely different purposes.  The mother saw the communication book as a means of providing the father with information about the child's day-to-day activities in minute detail.  The father saw the communication book as a means of obtaining information about the child's activities whilst in the mother's care.  Accordingly it was never likely to work, and was ultimately abandoned until such time as a communication book was brought into existence by a contact centre where changeover occurs.  Both parties agree that with the assistance of the contact centre staff to filter the entries information now is able to be exchanged in an appropriate way.  Both parents agree that these written communications are now working, but only in circumstances where a third party edits their remarks to each other. 

8. I take into account the mother's evidence in relation to communication with the father, which begins at paragraph 151 and continuing in her affidavit.  She says that the relationship between her and the father remains highly conflicted and, in her view, some professional intervention needs to be considered.  As she sees it, the father is critical of her care of the child, blames her for everything and anything that happens to the child and his exchanges with her when they occurred, were angry and aggressive.  The mother says the father checks up on her by contacting any professional person to whom she takes the child.  This has included the GP, Dr F and Ms D.  The mother says that she has tried to encourage the relationship between the father and the child, but she has found it genuinely difficult to be a parent to the child dealing, as she must, with the father and dealing with the blame and checking up that goes on.  She says that when he approaches these people or agencies he demands copies of documents and makes applications through Freedom of Information access and he subpoenas their records.  The mother says she feels she cannot make a decision or take any action in relation to any concerns she may have about the child without the father taking those steps and/or confronting her or accusing her.  At paragraph 165 and following the mother sets out the list of people she has seen to address these matters of concern not only for the child but for her own mental functioning and ability to cope.  She has been seeing a counsellor for some considerable time.  She points out to the court that there have been continuous court proceedings between herself and the father since the child was five weeks old and he is now five years old.  She says that she has been raising the child alone as a single parent with support from her parents and friends, but the continued litigation and poor and belligerent communication with the father is an impediment to her ability to parent the child. 

9. The mother says that it has been a long time since she and the father have been in the same room.  They cannot speak to each other on the phone.  The father questions the child on the phone about the mother.  The mother says she agrees that it would assist the child to have more contact with the father, but her concern is that the more time the child spends with the father the more complaints she will get from the father about her care of the child, and it is the continuous litany of complaints which have destabilised her parenting.  The mother has conceded that she and the maternal family members have contributed to the level of conflict, and she agrees that the incident videoed showed a three-year-old boy having a game at the door and all he needed was for someone to have opened the door and he would have gone with his father.  She agrees that it was the maternal grandfather who could have, but did not, open the door.  When she returned home that day she became aware that the grandfather had kept the door locked, but notwithstanding that, she put the grandfather in charge of changeover the following fortnight and again the child did not go.  There is no doubt in my mind that that was provocative, and one can sympathise with the father at being frustrated and angry about such unfruitful changeovers.

1. As for the father's evidence, I do not intend to refer in detail to his affidavit.  The sheer size of that document with its annexures, which fills an entire folder and is inches thick, is a statement in itself and contains a litany of complaints about not only the mother's care of the child but the role she plays in the conflict.  In his oral evidence the father agrees that he and the mother have never been able to discuss anything and he agrees in his oral evidence that they will never be able to agree about any matter about the child.  The father too says that some professional assistance may be helpful.

2. In summary, it is not surprising that, in circumstances where both parents are completely frank about the total breakdown of their relationship and indeed the fact that they have never been able to agree about anything in relation to the child and that they are each critical of the other's approach to parenting, each blames the other for the state of affairs.  The mother sums it up as constant criticism by the father and checking up by the father having destabilised her care of the child and created a level of anxiety in her house whereby she has overreacted to statements and behaviours of the child made in a particularly volatile and conflictual situation.  The father, in summary, does not see that he has contributed in any way to the mother's mental functioning and inability to cope, and says that, quite simply, she has tried through the denial of contact and the raising of allegations to destroy his relationship with his son. 

3. The most helpful analysis comes from Dr B whose evidence is unchallenged.  He has spent some time reporting on the dynamics of the relationship between these parents and in the family report he says at pages 13 to 14:

   “[The mother] appeared to be somewhat anxious and obsessional about her care of [the child]. …… I formed the view that she was a capable caring parent.  If anything, she had appeared to be overly considerate and accommodating towards [the father] but that now she felt very intimidated by him and his belligerence and wanted to cut off from him.”

4. At page 14 Dr B says:

   “I formed the view that [the father] was a very rigid, obsessional person who had difficulty understanding the viewpoint of others, particularly [the mother].  He tended to be rather belligerent in his manner.  I believe that the belligerence has unfortunately contributed to the increasing gulf between him and [the mother] with regard to dealing with [the child's] care and management.  [The father] appears to believe that his approach is the best and only approach and has difficulty accepting or acknowledging that there may be other approaches which [the mother] may want to take, for example, with the nappies etc.  [The father] then interprets [the mother's] lack of compliance with him as an attempt to undermine him.  He responds with more anger and belligerence, which increases [the mother's] anxiety.  However, to [the father's] credit he hasn’t intentionally exposed [the child] to his views and beliefs about the mother and it would appear that his relationship with [the child] has been progressing well.  I formed the view that he was a capable, caring parent and that he had a great deal to offer, particularly in a supportive parenting role.  He will need to learn to be supportive of [the mother].”

5. At page 16 of his report Dr B writes:

   “[The child] has developed a good relationship with both parents.  There were orders for increasing contact.  It would appear that at the time [the child] was due to have contact with his father for block periods that the relationship broke down.  There was increasing anxiety and poor communication.  [The mother] felt criticised and bullied by [the father].  [The child] was experiencing some distress, probably from the strain and conflict between the parents. …” 

6. Further, I also incorporate into my judgment that evidence of

   
   

   Dr B to which I have referred at paragraphs 71 and 72 of this judgment. 

7. I accept Dr B's evidence in relation to each parent's approach to parenting and the incompatibility of those approaches.  That assessment was done at the end of 2006 and I am satisfied that at the beginning of 2008 when the matter concluded there was no real change in that dynamic.  Although Dr B has recommended that the parents seek professional assistance to learn some strategies to deal with each other and although each parent has indicated a willingness to do so, on balance, I am not satisfied that there is likely to be any significant change.  In particular, right at the end of the hearing the father, whilst able to make a number of concessions which took into account the child's primary emotional attachment to his mother and acknowledged the level of the distress the child would suffer if separated from her and accordingly withdrew his application that there be a change of residence, was nonetheless unable to see that the poor relationship and the high level of conflict surrounding the parents' relationship was anything at all to do with his own attitude.  There were certainly no concessions made acknowledging belligerence or anger or a highly critical attitude to the mother's parenting and no acknowledgement of the extent of the checking up he had done on the mother's care of the child or the amount of criticism of her care of the child directed towards her and about her and absolutely no acknowledgement that this approach was not only not supportive of her parenting of the child but was in fact destabilising her care of the child.  Instead, the father seeks as part of his final proposal orders that require the mother to seek assistance for what he describes as “mental health problems”, attributing her raising of the allegations of sexual abuse and then withdrawing those allegations as reflecting defective mental functioning that requires professional assistance.

8. In short, I have no confidence that there will be any improvement in the level of communication that exists between the parents at the moment and no diminution in the high level of conflict that has been characteristic of their relationship pretty much since the child was born.  

9. Accordingly, the orders I make, albeit, as I said earlier, there is now not a great distance between the parties, should reflect that poor level of communication and high level of conflict.  The mother and the Independent Children's Lawyer seek orders which acknowledge that during 2008 the alternate weekend contact will reach a duration which includes three consecutive overnight periods.  I intend to order that outcome be achieved, albeit in a manner that assists the child to adjust to the increase. 

10. The biggest issue between the parties is whether or not the weekend period should extend to a duration of four consecutive nights.  I do not intend to order that occur in the near future; I do, however, intend to increase the weekend periods to conclude on the Tuesday morning when the child is older.  I intend to make orders as sought by the Independent Children's Lawyer which avoid any changeover taking place other than at a Contact Centre.  In my view that is a vital requirement of any orders made in this case.  The Independent Children's Lawyer has carefully drafted orders so that changeovers occur on a weekend when the Contact Centre operates.  Regrettably for the child, that precludes the possibility of him spending some time with his father on his birthday if that birthday falls during the week when Contact Centres generally do not operate.  Both parties agree that since changeover commenced at a Contact Centre at the end of 2006 there have been no difficulties, that the communication monitored by the contact centre has assisted them and, more importantly, that the mother sees that the child's disturbed behaviour has effectively disappeared.  In those circumstances it seems extraordinary that the father would be proposing that there be a changeover outside the child's school on those occasions when the Contact Centre is not operating.  Such a order is likely to condemn the child to an unpleasant changeover experience involving adults from each side of his family. 

11. Nobody is seeking an order for midweek contact and in the circumstances of this case that is a sensible approach where it has been well-demonstrated that the frequency with which the child should pass between the two households should be minimised.  As well as the strong relationship between the child and his father, that is another reason why I intend to extend the duration of the alternate weekends when the child is older. 

12. I do not intend to make the orders sought by the father which “sets in cement” at this stage of the child's schooling that there be an agreement now that he attend M High School.  Whilst that is probably the school he will go to, it is too early to see where this little boy's interests lie.  He may have an opportunity to go to a selective high school or a specialist high school in the area etc, and that is something that can be ultimately decided by the mother closer to the child's high school if there is no agreement between the parents.  There is no issue with the primary school as the child has already commenced his primary education.

13. The father seems to be of the view that there was an agreement in court that telephone contact should take place between 6.00 and 7 pm.  My notes do not show that agreement, although that is not to say it was not discussed.  I note that the Independent Children's Lawyer has proposed between 4.00 and 5.00 and it seems to me the practical thing to do is to make it between 5.00 and 6.00, i.e. the midway position. 

14. I do not intend to make a separate restraining order preventing the mother from taking the child to a psychologist without the consent of the father as that issue is dealt with in the draft orders placed before the court by the Independent Children's Lawyer and agreed to by both parties. 

15. I intend to make a recommendation, as opposed to an order, that both parents attend a post-separation parenting program that has been recommended by Dr B and which both parents have indicated a willingness to do so.  The mother already has her own counsellor and that may already meet the requirements of the court's recommendation. 

16. I certainly do not see any reason, as sought by the father, to oblige the mother to specifically address her mental health problems through a counsellor.  It should be noted that although the father believes the mother is mentally unbalanced, there is no suggestion of that by the very experienced family and child psychiatrist, Dr B, whose evidence on that issue was not challenged. 

Summary and Conclusion

1. As part of the written submissions the father and the mother did, as directed by the court, indicate which orders in the Independent Children's Lawyer's  draft proposal they agreed with or otherwise.  Ultimately the distance between the parties narrowed considerably and each of the parents is to be congratulated for that.  That does not remove my concerns about the high level of conflict between the parents of this little boy and the fact that that has been, and will always be, a feature of his childhood. 

2. The orders I make are, on all of the evidence before me, in the child's best interests.  They are, in a general sense, the orders urged upon me by the Independent Children's Lawyer.  

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm

Associate:   J

Date:   11 November 2009