Marriott and Draper

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARRIOTT & DRAPER

[2016] FCCA 1677

Catchwords:
FAMILY LAW – Parenting – where Father guilty of sexual offences – whether unacceptable risk of harm – whether the Father’s emotional and social skills deficits affect his parenting capacity – risk of harm established – recognition contact ordered.

Legislation:

Crimes Act 1900 (NSW), s.91K

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

MRR v GR [2010] HCA 4

Applicant:

MR MARRIOTT

Respondent:

MS DRAPER

File Number:

WOC 984 of 2013

Judgment of:

Judge Altobelli

Hearing dates:

9 and 10 July 2015; 3 June 2016

Date of Last Submission:

3 June 2016

Delivered at:

Wollongong

Delivered on:

27 July 2016

REPRESENTATION

Solicitors for the Applicant:

Williamson Isabella Lawyers & Public Notaries

Counsel for the Respondent:

Ms Gillies

Solicitors for the Respondent:

Hansons Lawyers

Counsel for the Independent Children's Lawyer:

Mr Anderson

Solicitors for the Independent Children's Lawyer:

Helen Volk Lawyers

ORDERS

That the Mother have sole parental responsibility of the child X born (omitted) 2012.
That the child live with the Mother.
That the child spend time with the father as agreed in writing, or otherwise, failing agreement, on four occasions each year, at such times and days as agreed to between the parties or otherwise, failing agreement, the Saturday immediately following the child’s birthday, Easter, Father’s Day and Christmas, for a period of not less than 3 hours and on each occasion, such time shall be supervised by (omitted) Supervised Contact Services, CatholicCare Supervised Contact and Changeover Centre, (omitted), or Care (omitted), (omitted).
For the purposes of the time the child spends with the father pursuant to Order 3, that the Father be responsible for meeting the costs of supervision.
For the purposes of Order 3, the Mother shall email the Father, at least thirty (30) days prior to any visit and nominate the day, time and a location for the visit and the Father is required to confirm in writing, within fourteen (14) days thereafter, that he will attend those visits.
That any time the child spends with the father shall take place in a public place.
These Orders operate as the authority of the Mother, for the Father to obtain information he may seek from any medical practitioner as to prognosis, diagnosis and treatment rendered or educational service provider, copies of school reports and general information about the child’s progress, in relation to the child.
That the mother notify the father of any decisions she makes in the exercise of her parental responsibility within 30 days of such decision occurring, by email.

That, for the purpose of the parents communicating in respect of the time the child spends with the father, such communication is to occur by email, unless otherwise agreed.
That each parent keep the other informed of their email address, and of any change to such email address, within 14 days of any change occurring.
That each parent be restrained from denigrating the other parent or any member of that parent’s household or family in the presence or hearing of the child and shall immediately remove the child from the presence of any other person who does so.
That the Father be restrained from contacting or approaching the Mother and the child by any means whatsoever except for the purpose of implementing these Orders or as otherwise agreed by the mother in writing (including via email or SMS in an emergency).
That the father be restrained from attending any school the child attends EXCEPT with the express consent of the mother, in writing.
That the father be restrained from photographing or videoing the child by any means PROVIDED THAT, this Order shall not prevent any person supervising the time the child spends with the father taking a photograph of the child and/or the father, for the father to retain such photograph.
Nothing in these Orders shall prevent the father from:
(a)Providing a gift to the child; or
(b)Bringing not more than two other paternal family members to attend;
when spending time with the child PROVIDED that the father has first obtained the mother’s consent.
That the mother be at liberty to apply for the issue and/ or renewal of an Australian Passport for the child, without the signature or consent of the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 984 of 2013

MR MARRIOTT

Applicant

And

MS DRAPER

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about X, who was born (omitted) 2012 and is now four years old. This was a difficult case to decide. The issue was how much time and under what circumstances, X should spend time with her father. X’s father is the Applicant in this case. He is a 54 year old (occupation omitted) who lives in the (omitted). X’s mother is the Respondent. She is a 35 year old tertiary student who also lives in the (omitted).

Background

X’s parents met in 2007 or 2008 – nothing turns on the precise date. They commenced cohabitation the following year. They participated in an In Vitro Fertilisation program and were successful on their second attempt. X was born (omitted) 2012 and her parents separated on 31 March 2012. X and her mother moved into the Maternal Grandmother’s home where they still reside.
The end of X’s parents’ relationship has its genesis in events that took place in December 2011. The Father had set up a small video camera in the bathroom of the home they were occupying at the time. He secretly filmed the users of the bathroom – as it turns out, the Mother’s sister and the Mother’s stepsister - undressing and showering in the bathroom. The footage in question depicts the Father setting up the camera in the bathroom and testing it. In April 2012, the Father was charged and pleaded guilty to filming the Mother’s sisters in the shower without consent.
Between the date of separation and right up until the date of the hearing, the Father spent supervised time with X.
When the Father was charged in April 2012 over the bathroom incident, he stated that it was done with the intention of filming the Mother while she was pregnant. He initially told the police that he forgot about the camera and didn’t remember anything about it until later. He agreed that the camera was disguised by a perfume bottle and placed in a cigar box.
Between December 2011 and April 2012 when he was formally charged, the Mother alleges and indeed the Court finds that first, the Father sought to externalise responsibility for his action by blaming other members of the Mother’s family and secondly, he actively sought to dispose of evidence that might be used in the subsequent police proceedings against him. Specifically, the Court finds mainly on the Father’s own evidence, that he disposed of hard drives from other computer devices in circumstances where a reasonable inference to be drawn was that he did so because there was incriminating evidence on these hard drives.
Between the date of separation and the date that the Father was charged, the Mother encouraged the Father to obtain psychological help, which he did. On 9 January 2012, for example, his psychologist records that the Father presented with an adjustment disorder with mixed anxiety and depressive mood and with scores indicating extremely severe depression, anxiety and stress. The psychological records in question recorded the Father’s own acknowledgment that the Father struggled to manage his own impulsivity.
In April 2012, the Father was charged and pleaded guilty to the criminal offences arising out of the bathroom incident. In February 2013, he was sentenced in the Local Court to nine months imprisonment with a non-parole period of six months with conditions. The Father appealed to the District Court on the basis of severity. He was released subject to supervision. The Father continued to obtain psychological help during this period. A pre-sentence report was prepared.
One such record that was in evidence is dated 20 June 2013 and it records, consistently with the rest of the evidence before the Court, that up until the end of the interview on 17 June 2013 between the Father and his psychologist, he had consistently denied the offence claiming that it was entirely accidental. However, at that interview, he acknowledged that he had set up the camera to capture the images on purpose but he couldn’t adequately explain his purpose. In cross-examination, in this regard, he later agreed that revenge on members of the Mother’s family (who he believed, quite correctly as it turns out, thought poorly of him) was his main motive.
At the time of the interview with the psychologist, however, he denied that sexual gratification was any part of his motive in placing the video camera in the bathroom. His psychologist opined, however, that it was more likely than not that his sexual frustration, as well as his resentment towards his fiancé’s family, were the driving forces behind the sexual offending. As it turns out, in cross-examination, the Father admitted that sexual gratification was at least part of his motivation.
The Father’s appeal came before the District Court on 8 July 2013. His custodial sentence was vacated in lieu of a bond for a period of 3 years and on conditions including that he be referred to a sexual offender’s program. He was also sentenced to 250 hours community service.
The Father started to see a clinical psychologist, Dr D, whose evidence will be discussed below.
The present proceedings were commenced. The first consent orders were made on 4 March 2014 which provided that the Father spend time with X, supervised by the Mother, or by her nominee at an agreed public place each Saturday from 9.30 am to 11.30 am. The Court finds that the Mother has been the most consistent supervisor of the Father’s time with X since then.
There were periods, however, when X’s time with her father was supervised by CatholicCare and Connecting Families. The Father has spent limited time with X in his home.
The most current and comprehensive orders relating to the Father’s time with X were made on 1 December 2014. These were consent orders. They provided for X to live with her mother and spend time with her father each Saturday as follows:
a)supervised by the Mother or the Mother’s nominee at a time agreed between the parties, but failing agreement from 10.00am to 12.00pm, each alternative Saturday; and
b)in the alternative week the Father make arrangements for supervision by either CatholicCare or Connecting Families, at his own expense.
The order also made provision for special days.
It was common ground by the time of the final hearing that the second limb of this order was not utilised by the Father, in the months leading up to the final day of the hearing. In other words, the Father elected to only spend time with X once each fortnight, even though the orders provided for him to spend time with her each weekend.
The final hearing took place over three days, 9 and 10 July 2015, and then 3 June 2016. At the hearing the Father was capably represented by his solicitor, Mr A. Williamson. Ms Gillies appeared as Counsel for the Mother, and Mr Anderson as Counsel for the Independent Children’s Lawyer.
Evidence was given in the Father’s case by the Father, paternal grandmother Ms E and by the Father’s treating psychologist, Dr D.
In the Mother’s case, evidence was given by herself and by Ms L who had played an integral role in supervision of the Father’s time with X, for a substantial period.
In the Independent Children’s Lawyer’s case, the evidence came from Ms C, a Regulation 7 family consultant, who provided a report, dated 11 November 2014. All of these witnesses were cross‑examined.
By the time of closing submissions, the Father proposed a minute of order which is reproduced in the first schedule to these reasons. He proposed equal shared parental responsibility, that X live with the Mother but spend time with him in a gradually increasing basis. The time would continue until 1 October 2016 being supervised by his mother but thereafter be unsupervised and gradually increase in terms of duration until 6 months after X commences attending school, when it will become each alternate weekend from Friday to Sunday. His order also proposed special days.
The Mother and indeed, the Independent Children’s Lawyer, jointly proposed that the Mother have sole parental responsibility and that X live with her. They proposed that X spend time with her father 4 times each year, supervised and in effect on a recognition basis. The Mother and Independent Children’s Lawyer’s minute of proposed order is reproduced in the second schedule to these reasons.

Issues

Both the Mother and Independent Children’s Lawyer ultimately submitted that there was an unacceptable risk of harm if X were to spend unsupervised time with her father. Moreover, not just because of this risk of harm but also because the very tenuous relationship that exists between X and her father, there was not in effect a meaningful relationship and that the order that was in X’s best interests was one that enabled her to be able to recall who her father was, on the basis of limited contact at specific times in her life.
By contrast, the Father’s case was that there was no unacceptable risk of harm to X if she were to have unsupervised time with her father and that whilst there were some difficulties in X’s current relationship with her father, these were explained by reference to the highly artificial constraints that supervision creates, and that the removal of supervision would in effect satisfactorily address the relationship issues.
These reasons for judgment will set out the applicable law and then initially discuss the evidence of Ms C, simply because her evidence was both independent and expert. The remaining evidence will then be discussed by reference to the relevant considerations that are set out in the Family Law Act 1975 (hereafter referred to as ‘the Act’).

Applicable Law

In determining parenting matters under Part VII of the Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1)     The objects of this Part are to ensure that the best interests of children are met by:
(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)     to maintain a connection with that culture; and
(b)     to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)     to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)     family violence.
(3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)     If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)     the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.

Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The Evidence of Ms C

Ms C's Family Report is dated 11 November 2014 and is based on interviews that took place on 7 November 2014. By the time of the report interviews X had been spending supervised time with her father at a play centre for most of 2014 and, indeed, this fortnightly time had become supplemented by supervised time at CatholicCare Children’s Contact centre. There had only been 2, or possibly 3, such visits before the report interviews. At the time of the report interviews, the Father was seeking an extension of supervised time to unsupervised time and then incrementally increasing to whole days but not overnight time. The Mother’s proposal was only that supervised time continue. The Family Consultant was very much aware that the issue was one of unacceptable risk of abuse should X’s time proceed to unsupervised. The Mother had raised concerns about the Father’s lack of basic parenting skills and the nature of X’s relationship with her father.
At paragraph 19 of the Report, the Family Consultant records the Father’s explanations about the filming in the bathroom:
Mr Marriott denied that he filmed Ms Draper’s relatives in order to seek sexual gratification. His explanation for the offences was that it was “a spur of the moment thing” after he found the camera in his bag while he was looking for a cigar, “and for some stupid reason I envisaged a picture of Ms Draper and me and her pregnant belly.” When the Family Consultant expressed some scepticism about this account, Mr Marriott appeared to become flustered and said, “The camera did it. The only way I can explain it is that there was an underlying attempt to capture people but it was not for sexual gratification but only to get back at her (Ms Draper’s) family…. because they hated me.” Mr Marriott described the incident as one “which started out so innocently but became a nightmare.” Mr Marriott said that back then, he did not know how to deal with his negative feelings about Ms Draper’s extended family in an appropriate way, and he was unable to be confrontational, so “maybe that’s why the act was deliberate like that.”
At paragraph 20, she records that the Father “repeatedly and emphatically emphasised that his actions that day were not sexually motivated. He said he does not watch pornographic films and he has no interest in these sorts of material.”
The Court observes that during his own evidence, the Father did in fact concede that at least one motive was sexual gratification. In addition, his own evidence strongly suggested that the planting of the camera in the bathroom was calculated, planned and hardly the “spur of the moment thing” that he told the family consultant. Moreover, the evidence indicates that the Father clearly does have some sort of interest in pornographic film as he conceded making one at one stage earlier in his life.
At paragraph 24, the Family Consultant records that the Father described his relationship with X as one involving “a very close bond” but he believed that their relationship had been negatively affected by the close supervision and negative attitudes of family members. Indeed, this became a theme of his case, ie, that his seemingly poor interactions with X and the failure of their relationship to grow was attributable to the constraints of supervision.
At paragraph 25, the Family Consultant records:
Mr Marriott said that he has found the time at the Children’s Contact Centre to be quite difficult, as due to his past offences the Centre have instituted a ‘no touching’ rule which is absolutely enforced. Mr Marriott said this means he cannot even help X up on the slide, or give her a kiss on the cheek, or put her shoes on. Mr Marriott said that X has found this quite confusing, given the closeness that they had together at (omitted). Mr Marriott said that he believes X finds the Children’s Contact Centre environment to be quite boring and unstimulating after her experiences at (omitted) and elsewhere.
Again, this assumes significance in the Father’s case. In the end result, however, the Father conceded that there was absolutely nothing in the rules of the Contact Centre that prevented touching that was initiated by X. The no contract rule was, thus, hardly an explanation for what seemed at times like a distant relationship between X and her father.
The family consultant’s observations of the Mother are found at paragraph 29:
Ms Draper (aged 34 years) presented as an extremely quiet and shy woman, albeit friendly and polite. She looked considerably younger than her age. Her affect was somewhat blunted. She was difficult to engage, to the point where many of the questions needed to be framed as ‘yes/no’ answers and the Family Consultant had to use considerable prompting for more comprehensive answers.
Later, the Mother acknowledged that she had previously suffered from depression and had in the past used alcohol to self-medicate. She expressed herself to be in good physical and mental health. She described her relationship with the Father as “two people living together with little intimacy or emotional connection”. She described to the Family Consultant her reaction to the bathroom incident at paragraph 35:
Ms Draper said she was shocked and devastated when she learned that Mr Marriott had secretly filmed her sisters in the bathroom at her father’s house, shortly after Christmas in 2011. She recalled that Mr Marriott emphatically denied that he had done anything wrong “and he tried to convince me it was all a big mistake and it was because my family were out to get him.” Ms Draper said that she felt torn between her family and Mr Marriott and she did not know whom to believe. She said she hoped Mr Marriott would benefit from going to counselling but he continued to berate her family and try and convince her not to see them.
Despite the separation, over what she considered to be the Father’s betrayal of her trust, the Mother was committed to and persistent in facilitating a relationship between X and her father. She believed it was not safe for X to have unsupervised time. The Mother was still not sure in her mind who the Father was intending to film that day in the house using the hidden camera given that there were young children staying in the house. She was concerned that he might do the same with X. She was also concerned about his lack of parenting skills and in particular, his inability to regulate X’s emotions.
The observations of X and her father are set out at paragraphs 52 to 58:
X (aged 2 years, 9 months) presented as a bright, engaging and lively young girl. She was appropriately wary of the Family Consultant but as the day went on she become more friendly and relaxed.
X’s expressive language is well developed for her age – she was observed to use long (5 words +) and grammatically correct sentences. Her play was highly imaginative and she was able to play for extended periods of time with a great deal of absorption.
X reacted in a neutral way to her father’s presence. She clearly recognised him – by smiling – but she made no effort to kiss or cuddle him or be close to him in any way. When she was told she was going to play with her father, it appeared that she was more excited about the prospect of the unknown “toy room” than about spending time with him. X chose to walk in front of her father rather than hold his hand, and Mr Marriott made no effort to initiate any physical contact.
X decided that she wanted to play with the dolls’ house. She then began an elaborately imaginative game, which Mr Marriott joined in with. Mr Marriott was overly cheery and loud at the beginning of the session, but as it went on, he seemed to relax and be able to engage more genuinely with X and she responded well to him.
There was no physical contact between X and her father. X was happy to sit in close proximity to Mr Marriott but she did not initiate any gestures of affection or warmth. Essentially, X played with her father like he was a friend.
Mr Marriott seemed content to let X decide what to play with. He made no attempt to direct or structure her play, even when she was wandering around the room, searching for something to play with. He did join in with X’s games with what appeared to be genuine enthusiasm.
At the end of the session, X left the room without waiting for her father to follow. She said a cheery good bye to him when prompted but did not acknowledge his leaving. At the end of the day, a similar thing occurred. Mr Marriott reached down to give X a kiss on the head, which she acknowledged with a small smile, and she then turned back to what she was playing with, seemingly disinterested in Mr Marriott. She showed no reaction to his leaving, either negative or positive.
It is important to recognise that the Family Consultant had available to her documents produced by the Father’s treating psychologist, Dr D, together with a pre-sentencing report. She acknowledged in cross-examination that she had accepted Dr D’s assessment of the Father as being a low risk for sexual recidivism. She noted that in a report Dr D had concluded that:
There are no indicators that Mr Marriott fails to have the resources or capacity to undertake parental responsibility for his daughter, and he is not considered a risk to her safety or well-being.
The Family Consultant’s evaluation commences at paragraph 66 of the report. The family consultant notes, with apparent concern, at paragraph 68:
While the time that Mr Marriott has spent with X since her birth cannot in any sense considered to be substantial, it has nonetheless occurred in an uninterrupted and predictable fashion, supervised only by people well known to X. It is the type of arrangement that would be analogous with, say, grandparents (or other extended family members) having weekly contact with a child. Under these circumstances, you would usually expect to find that the child would evince considerable affection for these familiar people, even if they were not actual attachment figures. X’s response to her father, however, was observed to be largely a neutral one. This suggests that there may be some issues in the manner that Mr Marriott has responded to X over time.
Paragraphs 69 to 71 deal with the issue of the nature of X’s relationship with her father. Here the Family Consultant refers to the interview that had been conducted with Ms L, a close friend of the Mother’s, who had supervised the Father’s time with X on many occasions. Ms L also gave evidence in the Mother’s case:
The affidavit of Ms L is particularly helpful in that it is a detailed and highly observant account of issues in the visits between Mr Marriott and X over several years. Ms L points out both the positives and the negatives in the child/parent interactions, which indicates she is making an attempt to be, if not entirely neutral, then clearly and firmly child focused.
If Ms L’s account of the interactions are accurate, they suggest that Mr Marriott struggles to view X as a separate individual with very different needs to him. He appears to be unable, with any consistency, to effectively anticipate her needs and respond to them in a timely way. Mr Marriott is able to engage with X in a basic (friendly) way, but not in the warm, (emotionally) responsive and attuned way that would facilitate attachment. This is reflected in the way that X responds to Mr Marriott – she tolerates his presence, and clearly gets enjoyment out of playing with him, but there is nothing deeper than this.
The lack of an attachment relationship between X and her father, and material before the Court which suggests that Mr Marriott’s parenting capacity is basic at best, means that if X were to spend unsupervised time with her father she may feel unsafe and insecure and this may serve to erode any positive aspects of the relationship that she currently has with her father. If X behaved in a challenging way for Mr Marriott when they were alone, then it is doubtful that he would have the skills to be able to manage and contain this behaviour appropriately. At the moment, the presence of known, emotionally supportive attachment figures during the visits currently means that X is able to interact with her father in a safe way.
As it turns out, the Court accepts that Ms L’s evidence and especially her observations about the interactions between X and her father is, in fact, correct.
At paragraph 72, however, the family consultant acknowledges the Father’s concern about the inherent limitations of supervised contact and the difficulty that it creates in him having a more genuine relationship with the child. As foreshadowed, this became a significant theme in the Father’s case:
There is a view, however, which suggests that the presence of attachment figures at visits between a child and a parent they are not attached to may impede the child’s ability to develop a relationship with this parent because they will always seek reassurance, comfort and soothing from the attachment figure, which does not allow the other parent to take on this role and gradually gain the child’s confidence. While there may be an initial period of uncertainty and anxiety for the child without the presence of an attachment figure, their need to be comforted will usually override their fears and – this is crucial – if the parent responds warmly, sensitively and consistently to their needs, the child will then begin to develop an attachment to this parent.

The family consultant firmly deals with this – even in the presence of attachment figures, what becomes important is the Father’s response, which, on the evidence, was clearly inadequate. However, at paragraph 73, the family consultant acknowledged that it was likely that the combination of her father’s presence and her father’s lack of skills in responding in a warm and attuned way to X, has meant that X has not developed an attachment to her father and she still views him as a neutral figure in her life.
At paragraph 75, the family consultant states:
Forensic assessment indicates quite clearly that Mr Marriott is a low risk for sexual recidivism and there is nothing in the material before the Court, or in Mr Marriott’s presentation, which suggests that he poses this type of risk to X. The emotional and social skills deficits, however, which appear to have contributed significantly to his offending behaviour, have had and will continue to have an impact on his capacity to care for X appropriately in the future.
In cross-examination, the family consultant was challenged and ultimately accepted, that she had based her recommendations on the thesis that the Father was a low risk for sexual recidivism.
At paragraph 76, the Family Consultant states that the Father needed intensive parenting training, so that he could learn the skills necessary to be able to anticipate and effectively meet X’s physical and emotional needs in a timely and responsive manner. She also suggested at paragraph 77 that he would benefit from continued engagement with Dr D.
The family consultant was clearly impressed about X’s capacity for resilience, albeit untested. She was optimistic that if she experienced the Father, for a sustained period of time, as being responsive to her in a warm and empathic manner, together with developmental maturity, she would be likely to tolerate unsupervised time and would be safe and secure.
Ms C’s recommendations are found at paragraphs 81 to 86 inclusive:
It is recommended that the parties equally share parental responsibility for the child X.
It is recommended that X live with her mother.
It is recommended that X spend time with her father in the following way:
Until February 2016, for two hours each week, alternating between Saturday and Sunday, supervised by the mother’s nominee (ideally Ms L) in a (ideally varied) public setting as agreed to between the parties;
- From February 2016, subject to the father meeting all of the conditions outlined in paragraph 84 below, each Sunday from 11am to 3pm and each Wednesday (or other suitable weekday as agreed between the parties) from 4pm to 6pm with these visits to be spent in public places;
- From February 2017, on the first, second and fourth Sunday of each month, from 10am to 4pm and from 3pm until 6pm on the Wednesday of the third week.
It is recommended that the father spending any unsupervised time with X is subject to him successfully completing a minimum of two appropriately targeted parenting courses (as recommended by Catholic Care staff) including a ‘Triple P’ and ‘Circle of Security’ or similar; and recommencing counselling with Dr D on a minimum of a monthly basis; and completing a Parenting After Separation course.
It is recommended that the father supply the mother with original documentation regarding the courses he has completed and his attendance at counselling, at least four weeks prior to any unsupervised time commencing.
It is recommended that the father should be allowed to bring either relatives or close family friends to his supervised visits with X, but this should be restricted to no more than two (additional) adults at a time, or one adult and one child.
The Family Consultant was extensively cross-examined.
A key theme emerged from the answers given in cross-examination by Mr Anderson, Counsel for the Independent Children’s Lawyer. She described the Father’s relationship to X as analogous to a radio that is almost but not quite properly tuned in such that he simply could not demonstrate an ability to receive a child’s cues in a way that is going to make that child feel safe and secure. At the time of her report, she had hoped that the Father could learn some of those skills. She described these skills as “higher-order emotional attending skills.” (Transcript, page 9, line 43).
It was clear from the context of the statement, however, that even this would not guarantee an attachment between X and the Father. She was confident, however, that X likes her father and enjoys his company up to a point. Given the history of the matter, she acknowledged that the relationship between X and her father would not be “a classic sort of father-daughter relationship in that sense”. (Transcript, page 10, lines 7 and 8).
What becomes apparent to the Court, therefore, is that even putting aside risk of harm issues, the very nature of the Father’s relationship with X is an important issue to try to manage by way of orders.
By the time the Family Consultant gave evidence, the Father had been cross-examined and it was apparent that he had failed to tell the family consultant a number of things. These matters were systematically put to the family consultant. The matters in question are set out on pages 6 and 7 of the transcript. The Family Consultant was asked whether, if the Court accepted this evidence, it would affect her opinion and recommendations. In this regard, it should be noted that all of the matters put to her as emanating from the evidence of the Father are in fact correct and represent findings of the Court. On page 7 of the transcript, lines 33-39, the family consultant makes it very clear to the Court that she was concerned about the findings the Court would make. Specifically, she was concerned about the Father’s violent and antisocial past, his past interest in pornography, his acceptance that there was a sexual element to the filming offence, that he had attended to parenting courses, that there was an angry side to his nature and that he has experienced mental health issues. Ms C said at lines 38 to 39:
While my recommendations are fairly cautious, I would probably now have more caution in proceeding.
She then clarified in the next question that she was referring to proceeding to unsupervised time. Moreover, at page 8 of the transcript, she also acknowledged that the risk factors caused greater concern and thus she would be “recommending a greater level of caution going forward” (page 8 transcript, lines 43 and 44). She recommended supervision, albeit a mixed form of supervision. She conceded that supervision would probably need to continue until such time as X commences school.
Counsel for the Independent Children’s Lawyer put it to the family consultant that one option was recognition contact, ie, once every two or three months so that X knows who her father is and can feel some level of connection with him. It is clear from Ms C’s response to Mr Anderson’s question that she was not, initially at least, attracted to the idea of recognition contact as she didn’t believe it was necessary on the facts of this case.
The Family Consultant was also challenged about her appraisal that sole parental responsibility was not needed in this case, and that equal shared parental responsibility would be appropriate. Mr Williamson’s cross-examination of the family consultant was relatively benign because her recommendations were reflected in the Father’s proposal. What is apparent, however, is Ms C’s acceptance of Dr D’s assessment of risk of re-offending. In addition, she felt that once X could confidently verbalise, that would be a risk mitigating factor.
Interestingly, the Family Consultant firmly rejected Mr Williamson’s proposal that the only reason for X’s distant relationship with her father was the presence of supervisors during their time, especially an attachment figure as a supervisor. She pointed, quite firmly, to the significant role of the Father’s own interactions with X and the inadequacy of these. She described the Father, again, as “the slightly untuned radio” (transcript page 14, lines 3 and 4).
Ms C would also not be drawn into speculation about overnight time and even suggested that a further report might be needed before it gets to that.
Ms Gillies cross-examined the family consultant, on behalf of the Mother. The family consultant acknowledged that there was no basis to the Father’s hypothesis that the very poor observation of their interaction in the report interviews was somehow attributable to the no touching policy at CatholicCare supervised contact centre given that that had only been 2 or 3 visits before the family report interview.
The Family Consultant acknowledged to Ms Gillies that given the matters put to her so far in cross-examination, her recommendations had changed at least to the extent that supervision should remain in place until X commenced school. She also accepted that “the Father has been less than honest about aspects of his past.” (transcript, page 19, line 23). She described this as something that was “absolutely concerning”.
In terms of risk of harm, she conceded that if the Court found that the Father had in fact tried to hide evidence and if in fact children had been present at the home at the time of recording this would affect risk assessment.
Ms C conceded that if the Court accepted the Mother’s evidence about the nature of her relationship with the Father, it would probably be described as both coercive and controlling. Ms C emphasised, however, that there was no evidence of the continuation of this after separation and that whilst it was a factor, indeed a relevant factor, it was adequately managed by supervision.
In re-examination by Mr Anderson, Counsel for the Independent Children’s Lawyer, Ms C confirmed that her risk assessment, in terms of the risk of physical or psychological harm to X arising out of her father’s voyeuristic activities was largely based on what she had been told by the Father and Dr D. She felt the risk of harm was not unacceptable in this regard but accepted that the Court might find otherwise. She acknowledged that whilst X appeared a resilient little girl the Mother’s anxieties about all of these risks was a perfectly legitimate factor.
It is important to note in conclusion that what attempt was made to put to the family consultant the option of recognition contact was refuted by the family consultant who preferred an option of longer term supervision and then the progression to unsupervised daytime. To be fair to the family consultant, however, she did recognise that the Court was in a much better position to assess risk to X than she was.

The evidence of Dr D

Dr D swore an affidavit on 8 July 2015 in which he annexed what he described as an updated report dated 14 February 2014 relating to the Father. There is probably a typographical error there – the date should have been 14 February 2015. He describes himself as a forensic psychologist who had been seeing the Father for treatment since October 2013. Whilst Dr D is clearly an expert in this case, unlike the family consultant, it could not be said that he is independent.
The Father had five individual therapy sessions with him on 29 January 2015, 26 February 2015, 26 March 2015, 8 May 2015 and 5 June 2015.
Dr D’s report annexed to his affidavit of 8 July 2015 focuses on the Father’s emotional stability and adherence to his ongoing healthy living plans. It refers to the stressors that the Father experienced as a result of the current litigation. He did not think that the Father was either clinically depressed or suffering from anxiety or adjustment disorder. The Father seemed to be reducing his alcohol consumption and was working on greater engagement at a social level with other people.
Perhaps more relevant in the present context is the report that he gave, dated 4 April 2014, to the Father’s lawyers. This report is annexed to the Father’s affidavit of 1 July 2015.
This report explains that Dr D was providing psychological treatment to the Father since October 2013 specific to his emotional regulation, psychosexual functioning, risk of future offending and additional clinical issues related to this risk, such as assertiveness training, emotional awareness and coping skills. The Father attended on him 14 times between October 2013 and April 2014.
Dr D described the Father’s family background as including a childhood lacking affection and generally one that was consistent with poor attachment. The Father was a loner throughout his childhood and significantly ostracised and bullied at school. He became ineffectual at managing conflict, preferring to remain passive, whilst harbouring building resentment and aggressive ruminating thoughts. He learnt that people were untrustworthy. He remained distant from others, highly emotionally controlled and not allowing himself to experience or express negative feelings such as fear, sadness or anger. In his early relationships, he experienced emotional abuse and controlling that led him to develop resentment and passive-aggressive behaviours, or outright aggressive outbursts towards those around him. He experienced depression, including in the relationship with the Mother in this case, the consequent contact dispute and the criminal proceedings.
At 2.3 of the report, Dr D deals with the topic of risk assessment. He states:
In relation to his previous criminal offence, I consider that Mr Marriott falls within the Low risk range for sexual reoffending and has subsequently completed appropriate treatment, commensurate with his level of risk. There were a number of dynamic factors identified associated with the potential for future offending;
Intimacy deficits
Passive conflict resolution style
Lack of self-worth and lack of social confidence
Emotional regulation (awareness and management skills deficits
Isolation from peers
It is worth nothing that each of these areas were specifically addressed within individual psychotherapy and Mr Marriott has demonstrated improvements in each of the areas to date.
He then goes on to discuss the case formulation. Specifically, the reference is to the offences committed. Dr D believes that the Father’s offence was the result of unrequited resentment towards individuals that he believed at the time were treating him disrespectfully and working to undermine his relationship with the Mother. The Father’s inability to manage this anger towards them and resolve this conflict in an appropriate manner led him to find a secretive, passive aggressive response to vent his anger. Dr D noted that this passive aggressive pattern of behaviour was typical of much of the Father’s life.
At 3.4 of the report, he discusses risk factors and warning signs:
The following risk factors and warning signs were identified in treatment that would indicate that Mr Marriott may be returning to old patterns of behaviour or not managing his life effectively. Mr Marriott has agreed to maintain vigilance in monitoring these warning signs and return to treatment if they occur,
Feeling isolated, lonely and bored
Unresolved resentment towards a future partner
Relationship conflict of boredom
Social withdrawal
Prolonged depressed mood
Increased sleep disturbance
Increased use of avoidance strategies to cope
Use of alcohol to cope
Return of negative self-evaluation/pessimism
At 3.5, he discusses the Father’s management strategies and rules for living:
At the conclusion of treatment, Mr Marriott committed himself to following these rules to avoid placing himself in high risk situations and implementing early intervention strategies;
Socialise with friends and associates more often
Maintain emotionally supportive relationships with family and friends
Continue to be more assertive to resolve conflicts
Maintain self-awareness
Seek help from professional contacts if significant problems arise
The conclusion of Dr D is found at the last page of the report:
Mr Marriott currently has adequate support from family and friends, he is resilient, self aware and willing to accept responsibility for the need to make change is required. This leads to a person able to adjust to the daily stressors of life and changes in circumstances. He is becoming more warm and receptive to open up to others more recently and genuinely enjoying the closer connections he is now making. There are no indicators that Mr Marriott fails to have the resources or capacity to undertake parental responsibility for his daughter and is not considered a risk to her safety or well-being. He has demonstrated vast improvements in his functioning to date and a willingness to return to treatment in the future if he experiences any type of significant difficulties. It is clear that a major part of Mr Marriott’s motivation to improve his emotional regulation and interpersonal relationships skills in the first place was to be a better parent and tole model for his daughter. Mr Marriott’s role as a father appears to be primarily central in his self-identity.
Before considering the cross‑examination of Dr D, a number of observations need to be made about the report. Insofar as Dr D gave an opinion about the Father’s parenting capacity, it is with respect, an opinion based entirely on his interaction with the Father which, of course, was based entirely on the Father’s self history. Dr D’s opinion about the Father’s parenting capacity carries little weight. Dr D’s professional opinion about risk factors falls into a different category. Ms C, the Family Consultant, certainly placed some reliance on this. More will be said about this below. Insofar as Dr D discussed risk factors and management strategy, the Court’s impression of the Father, based on all the evidence in this case, is that he continues to be a loner and there were even glimpses of passive aggression during cross‑examination.
Dr D was cross‑examined. Ms Gillies, on behalf of the Mother asked Dr D to confirm the importance of the Father’s frankness with him in terms of risk assessment. Dr D agreed that this was important but did not necessarily result in a higher risk assessment. He agreed, however, that the Father had not told him and that he was completely unaware that the evidence suggested (including the Father’s own admissions) that he had caused computer equipment, discs and hard drives to be removed from his home and stored at 2 different places so that the police could not view the material contained on this equipment. Dr D explained that he was hearing this for the first time. He agreed that the Father had not been frank with him. He agreed that this was of concern given that he was assessing the risk of reoffending. He explained that if there were offensive materials on the discs, for example, photos or recordings of other victims that is important but doesn’t necessarily bump him into a higher risk factor. However, it could not be ignored.
Dr D explained that he was not surprised that the explanation that he gave for making the video recordings was different to different people. He thought it was typical of offenders to minimise what they had done or to seek to save face in particular context. He conceded, however, that if this minimisation took place in the context of a Family Report prepared for the present litigation it became more significant.
It was put to Dr D that the above evidence contraindicates Dr D’s view that the Father was more emotionally aware than beforehand. He did not agree necessarily. The Father was at all times aware of why he put the camera there. He chose not to present this information to the Family Consultant as a way of managing the emotional stress of the events and the Court intervention.
Dr D was not aware that at the time of the bathroom recordings there were other children present in the home. He accepted that it suggested there was a wider potential victim pool. He did not agree, however, that even if the Court found that one motive was sexual gratification that this would necessarily change his risk assessment. He agreed that he accepted the Father’s word about his decreasing social isolation and was not aware that the Paternal Grandmother had indicated to the Court that there had been no real change in their relationship in 5 years. He responded that what had changed is the importance of people in the Father’s life.

Dr D was not aware that there were past periods in the Father’s life when he had been actively aggressive rather than passively so.
When Mr Anderson, Counsel for the Independent Children’s Lawyer cross-examined Dr D, he agreed that Dr D performed the risk assessment for the purposes of the Father’s sentencing, ie, as part of a pre-sentence report.
It is clear to the Court that the Father was not entirely frank with his treating psychologist and that whilst Dr D was reluctant to concede that this would affect his risk assessment, the Court considers that the Father’s lack of candour about the critical events in question, his motivations and his own past would, more likely than not, affect the risk assessment. Having regard to all the evidence before the Court, the Court is not prepared to accept that the psychologist’s assessment of the risk of re-offending was as clear as he asserts.

Meaningful Relationship and Nature of Relationship

The focus here, of course, is the Father’s relationship with X. There is no question that the Mother has a meaningful relationship with her daughter, is her main attachment figure and otherwise enjoys an excellent relationship with her.
The Father struggled to accept in his evidence that there were difficulties in his relationship with X that needed to be worked through. In cross-examination, for example, he maintained the view that X was ready to go straight into unsupervised time with him. When confronted with examples of the obvious relationship issues, the Father minimised and externalised. For example, when it was put to him that there were times when X would not even look at him he said it was a temporal matter only, ie, that it occurred initially and that in reality what was happening was that she was easily distracted by people and things around her. Eventually, when pressed in cross-examination, he himself conceded that unsupervised contact could not start until X was “100 percent comfortable with me”.
A disproportionate amount of the Father’s case about his relationship with X seemed to depend in the Court’s view on the two Connecting Families reports dated 26 July 2014 and 23 August 2014, annexed to the Father’s affidavit. He maintained that these two reports demonstrated two excellent contact visits and how well he and X interacted when the Mother was not present. There is no doubt that these two contact reports present a picture of a very satisfactory contact visit between X and her father which, when viewed in isolation, would present a rosy picture of their relationship.
The difficulty in the Father’s case, of course, was the unsatisfactory observations of X’s interaction with her father at paragraphs 52 to 58 of the Family Report. This observation took place on 7 November 2014, just a few months after the last of the Connecting Families visits. The Family Consultant observed X to react in a neutral way to her father’s presence. There was no physical contact between them. The Father was not proactive but reactive with X.
The evidence of Ms L is useful on this issue. Her affidavit was sworn 2 July 2015. She was a frequent and regular supervisor of the Father’s time with X following the making of interim orders in April 2014. Whilst she gave evidence in the Mother’s case, the Court was impressed by the very balanced approached that she adopted in her evidence. She observed how X is always very slow in warming up to her father and needs prompting to acknowledge him. Once settled into her surroundings she appears to enjoy her play time with him.
She observed X to resist attempts by the Father for physical contact such as sitting on his lap. The Father needed encouragement to be more actively involved with X’s activities at times. X did not go to him for comfort when needed but rather to her mother or to Ms L. She was concerned about the Father’s rough play at times. The only concern in this regard was that X seemed not to understand how rough actions could also be fun. X seems to tire quickly of time with her father. Ms L gave examples of the Father not appearing to listen to X’s requests.
Ms L’s evidence is clearly consistent with the Family Consultant’s observations.
The Mother’s own evidence, contained in her affidavit of 2 July 2015, is also consistent with that of Ms L and the Family Consultant. She observes, for example, that the Father does not seem receptive to X’s body language and that the physical contact between them is minimal.
The cross-examination of the Father about these issues indicates to the Court that he struggled to be able to see the world through X’s eyes. There was an obvious chasm in the Father’s belief about what his relationship with X should be and could be and what it actually was.
Perhaps an insight is gained into the Father’s own concerns about the nature of his relationship with X from his decision not to pursue the alternate weekend time through CatholicCare. Between day 2 of the hearing (10 July 2015) and day 3 (3 June 2016), the Father declined to continue his supervised time at CatholicCare from October 2015. The Mother appeared to be at loss to understand why the Father would do this and her attempts to ascertain this were not successful.
She was certainly prepared to continue the alternating weekend contact at CatholicCare and she certainly continued the supervised contact with the Father on the other weeks outside of the centre. The Father could have led evidence about this but he didn’t. Even in his solicitor’s closing submissions, little attention was paid to this significant omission in the Father’s case. The Court cannot help but infer that this was at least tacit recognition by the Father that his time with X was not entirely satisfactory and that thus, the relationship was failing to progress.
The two Connecting Families supervised contact visit reports are an unreliable indicator about the nature of the Father’s relationship with X. The other accounts referred to above are more compelling but particularly the Family Consultant’s observations and her conclusion that X’s relationship with her Father was akin to a radio that was not quite tuned in properly. There is no question that X’s relationship with her father in a prospective sense is an important one. However, there must be recognition that the present reality is of a non-attachment relationship with a person who is a friend, or distant family member, rather than a parent.
The reasons for this probably have more to do with the Father’s personality which inevitably reflects his own life experiences and background. The Father seems to struggle in relationships generally. He clearly loves his daughter but struggles to demonstrate how this love is played out in their daily relationship. Regrettably, from X’s perspective, the evidence suggests that her relationship with her father is not a significant one, though she enjoys the play time with him. The Court does not accept any express or implied contention that the Father’s present relationship with X is somehow attributable to something that the Mother has done or failed to do.
Indeed, it was no part of the Father’s case that the Mother was anything but a good mother for X, or that she was undermining X’s relationship with the Father. It must be observed that notwithstanding the nature of the relationship between the parents and what the Court accepts is the Mother’s genuine fears about the Father, she has persisted at all relevant times in providing the opportunities for the Father to have supervised contact and being present in order to facilitate this. Regrettably, the shortcomings in the Father’s relationship with X are attributable to him. Dr D’s optimistic prognosis for the Father appears not to have been borne out by the passage of time.
The Court’s findings above have an important effect on a consideration of orders that are in the best interests of X. The fact is, in relationship terms, the Court is starting off from a very low base and would need to be very careful indeed about how, indeed if at all, it can progress this relationship by the making of orders that are developmentally appropriate and sensitive. Because of the nature of the Father’s relationship with X, any time would need to continue to be supervised into the indefinite future, if for no other reason than to provide comfort, reassurance and possibly even safety (see discussion of risk of harm below) for X.

Risk of Harm Issues?

The first matter to note is that it is very much a part of the Mother’s case that she believes that X is at risk of harm from spending unsupervised time with her father. At paragraph 75 of her affidavit, she says: “I want X to have a relationship with Mr Marriott, however, I am very concerned about his past sexual offending. I am concerned about him being emotionally available to her and to care for her.” She makes it clear, therefore, that she is not just concerned about the Father’s relationship with X and his capacity to adequately parent for her but also that he is a risk of harm to her as a result of his sexual offending.
At paragraph 76 she goes on to depose: “I believe that Mr Marriott has unresolved mental health issues and is a threat to X if she were left in his care unsupervised. I am concerned about Mr Marriott’s past sexual offending and the risk this may pose to X if she were to spend unsupervised time with him.” Thus the Mother raises concerns about the Father’s mental health, concerns that are expanded on in later paragraphs of her affidavit. The concerns about his mental health certainly have a context in the sexual offence but goes beyond that.
There can be no doubt that the Father was aware of the Mother’s concern and, indeed, these had been raised in earlier affidavits and in the earlier interim proceedings before the Court. He knew, or should certainly have known, that the sexual offences he perpetrated through the filming in the bathroom would be very much an issue that would be examined in this case.
The Father gives evidence about the event in question at paragraph 17 of his affidavit, sworn 1 July 2015. He deposes as follows:
In December 2011 we visited Ms Draper’s father at (omitted) and stayed over. We travelled up to her sister’s in Sydney then on to her father’s house. All was going fine until the morning of our departure, when I placed a small camera which was from my movies in the bathroom of their house and set it up in a cigar box as a stand. Whilst the camera was in the bathroom it filmed Ms Draper’s sister and step-sister having a shower. It was a couple of days after we left that Ms Draper was notified that the camera was discovered and taken to the Police who subsequently charged me with filming persons in a private act without their consent. There were no sexual intentions involved in this act by me.
The Father annexes the Court Attendance Notice and Facts Sheets pertaining to the charges. He was charged with 2 counts of film person in private act without consent to obtain sexual arousal. This is a crime pursuant to s.91K(1) of the Crimes Act 1900 (NSW). The first, indeed, obvious matter to note is that a component of the charge was the motive, ie, “to obtain sexual arousal”. Whilst the Father agrees that he was convicted of the offences in question, he somehow maintains at paragraph 17 of his affidavit that there were “no sexual intentions involved in this act by me”, an assertion he continued to maintain in cross‑examination. That is quite inconsistent with the charge from this Court’s perspective. An essential element of the charge was the motive, ie, “to obtain sexual arousal”. He pleaded guilty. In many respects the issue starts and ends there but the Father’s continued insistence that there was no sexual element to the offence, from his perspective, goes to the very heart of the risk assessment exercise that the Court must undertake in this case.
The Father annexes the Fact Sheet. An extract of the said Fact Sheet states as follows:
“The footage captured by the miniature video camera clearly shows both Ms T and Ms Draper in various stages of undress. The video camera was positioned directly in front of the shower door and captures both victims entering and exiting the shower whilst nude. In footage prior to the victims entering the bathroom, the accused can be clearly seen setting up the camera before walking a short distance away and looking back directly at the camera. The accused returns to the camera and can be seen to place a perfume bottle in front of the camera in what is believed to be an attempt to obscure the camera from view.”
This is the Fact Sheet pertaining to the offences in respect of which the Father was convicted. Again, in many respects, the inquiry about what actually happened begins and ends there, except to the extent that the Father maintains otherwise and even then the relevance of this is how it reflects on him.
The Father annexes his re-sentence Report dated 8 July 2013. It was prepared by a senior Probation and Parole officer, Ms S. She considers the Father suitable for a community service order but also that the Father should participate in and complete a sex offender treatment program.
Annexed to the pre-sentence report is a document entitled Pre-sentence Consultation dated 20 June 2013, prepared by Dr D, and Mr G. They assessed the risk of reoffending to be low. The Dr D, who is a co-author of this report, is the same person as Dr D who subsequently provided treatment to the Father. A series of Dr D’s reports are attached to the Father’s affidavits.
It is very clear from the Father’s case and the way in which it was presented, that he believed there was no risk of harm at all from him spending unsupervised time with X, arising out of the sexual offences.
Unsurprisingly, the Father was subjected to a very detailed cross‑examination about the offences in question. The Court has already foreshadowed its findings that the Father misled the Family Consultant about various aspects in relation to the offence. It is necessary to set out the detail at this point because, again, it informs the Court’s risk assessment undertaking. The cross‑examination was very skilfully led by Ms Gillies, on behalf of the Mother and then Mr Anderson, on behalf of the Independent Children’s Lawyer, tidied up what little was left.
In cross‑examination by Ms Gillies, the Father told the Court that he had taken full responsibility of his past actions as from about April 2014. Whilst he accepts that the Mother remained distrustful of him, his evidence was to the effect that she had no reason to continue to be distrustful of him. He accepted, reluctantly, that she might be distrustful of him given his criticism of her for not supporting his relationship with X, an allegation he had made as recently as 29 May 2016 in a letter from his solicitor. He sought to distance himself from this letter, seeking to explain that even though he felt she was not supporting his time with X, that did not make her a bad parent.
The Father agreed with the characterisation of the offences that he had committed as being sexual offences. Despite the nature of the charge (as indicated above, ie, film person in private act without consent to obtain sexual arousal), he “absolutely” maintained that he did not film for sexual gratification (Transcript, page 32, line 43). He accepted that at the time he placed the camera there was a likelihood that all of the inhabitants of the household were likely to be naked at some stage in the room that he was videoing. Knowing that, he still resolutely denied that there was any element of sexual gratification. The Father agreed that he thought it would certainly help him in his criminal proceedings if he were to deny that there was any element of sexual gratification. He maintained, notwithstanding, that he was telling the truth.
He ultimately accepted that his acts were cruel, intrusive and demeaning to the victims. At transcript page 42, lines 1 to 4, he said as follows:
It was sexualised, wasn’t it?---You could look at it, yes.
You were filming naked people?---Yes. Yes, you could look at it that way. Yes.
Just a few lines later, he agreed that what he did had a sexual element to it. Indeed, a derogatory and sexual element. Notwithstanding all of this, the Father maintains that his acts were not motivated by sexual gratification. Indeed, that there was no sexual intent involved.
The Court does not accept the Father’s evidence in this regard. Even on the most generous interpretation of the Father’s evidence, he seemed to accept that his actions could be viewed as having a sexualised element to it, even though he maintained (contrary to the strength of the evidence this Court holds) that there was no sexual element to it.
The Father’s denials in this regard were disingenuous. Even continuing to be generous to the Father, it is an ex post facto rationalisation of events, ie, he is rewriting history in his own mind to minimise the future risks to X arising out of his actions.
The cross-examination then proceeded to expose the inconsistencies between what the Father told Ms C, the Family Consultant, and what had actually happened.
The Father acknowledged that by the time he saw Ms C at the Family Report interviews, he had already come to a point where he considered that he was upfront and open about what happened on the day that he placed the video camera in the bathroom. He felt, by the time he saw Ms C, that he was able to accept responsibility for his actions without making excuses. He agreed he told her that the offence was a “spur of the moment” thing and that he had found the camera in his bag when looking for cigar. Indeed, he even told her that it was not his camera. It was the Mother’s camera. He agreed he told Ms C that:
For some stupid reason, I envisaged a picture of Ms Draper and me and her pregnant belly.
He agreed he said that because he was trying to convey to Ms C that that was the reason he hid the camera. He accepted that he was being untruthful. He accepted that, notwithstanding what he had earlier said, at that point he still was not accepting responsibility for what he did. He agreed that, in fact, he had told the police the same story when they first interviewed him.
He was taken to what he had told Ms S, who prepared the pre-sentence report about his motivation in hiding the camera. He agreed that he had consistently denied the offence to her, claiming it was entirely accidental. He accepted that it was not until June 2013 that he was prepared to accept that he had set the camera up. By then, the police had actually viewed the recording and he had become aware of that. He accepted that the significance of this was that it actually showed him going into the bathroom and secreting the camera, thus demonstrating that it was anything but accidental. He agreed that, in effect, he had been “caught out by the film” and that but for that, he probably would have continued to say it was accidental.
At the very least, the Court notes that the Father seemed to be honest in his answers in cross-examination no matter how damaging they were to him.
He agreed that he told the police that he had no intention of filming anybody accept the Mother and himself but then he became distracted and forgot that he had left the camera in the bathroom. He later agreed that was incorrect. Indeed, the recording of him setting up the camera suggested a very deliberate act of placing the camera in the direction in which it was most likely to see a person or persons entering the shower. He agreed that he had, in fact, left the camera there on purpose and that his assertion that he had forgotten that he had left it there was a lie. It was a lie to the police, designed to minimise the seriousness of what he had done. It was initially a lie to Ms S, for the same purpose. He explained this by saying that he “was in a denial state” (Transcript, page 41, line 6).

He was then taken to his representation to Ms C that the incident was “one which started out so innocently but became a nightmare.” He quickly agreed that innocent was not an incorrect word because his actions were quite deliberate. Indeed, he accepted there was no innocence to it at all and that it was a cruel, intrusive, demeaning act and one that might be seen as being sexualised.
He maintained that there was no element of sexual gratification but rather, an element of revenge.
The following exchange took place at transcript pages 42, lines 42 to 46 and page 43 lines 1 to 19:
How was filming her family naked on a video camera going to get back at them?‑‑‑The only way I can see – like looking back now is like – because my frame of mind back then wasn’t exactly clear. It’s more my way of dealing with – you know, rather than a confrontational aggressive stance, I did it sublimely by saying got you sort of. It was like a got you.
How would filming somebody in a manner where they didn’t know that you were doing it tell them that you had got them?‑‑‑Yes. It was for me.
And it was for your sexual gratification?‑‑‑No.
That’s right, isn’t it? And that’s why you can’t explain why you did it, because there’s really no other plausible explanation for you filming naked people in a bathroom?‑‑‑Definitely it was honestly for not – there was no sexual intent involved in that.
And to say that you were going to say got you, you were going to have to satisfy yourself that you indeed had footage of them naked, weren’t you?‑‑‑Correct.
So you were going to have to review it, weren’t you?‑‑‑At some stage, possibly, yes.
Right. So when I asked you those questions earlier and you denied initially that you were going to review it, again you were just lying, weren’t you? Because you always knew that you were going to review it because that was how you were going to go, in your words, got you?‑‑‑Correct.
The Father eventually agreed that he had misled Ms S and misled the criminal courts as well.
He was taken to 29 December, two days after the offence, when the Mother had spoken to him about the fact that the camera had been discovered. She had told him that her family would be going to the police and the Father agreed, he blamed them about that decision. Ms Gillies put to him at transcript page 45 line 27:
You said it was their fault and they should have come to you first and not gone to the police?
The Father responded:
That would have been respectful.
He later acknowledged that respectful was probably an incorrect word to use.
Perhaps the most disturbing part of the Father’s admissions in relation to the offence was his actions in seeking to dispose of evidence. The relevant evidence commences at transcript page 46 line 37 through to the end of that page and page 47 lines 1 to 17 inclusive:
In fact, Ms Draper had a laptop at around ‑ ‑ ‑?‑‑‑Yes.
Right. You had access to that laptop from time to time, didn’t you?‑‑‑Yes. I wouldn’t use Ms Draper’s laptop.
Right. You told her after she told you this matter had been reported to the police ‑ ‑ ‑?‑‑‑Yes. Yes.
‑ ‑ ‑ to take that laptop to your parents’ home, didn’t you?‑‑‑Yes. Yes.
You also, didn’t you, took a hard drive belonging to you to Mr A’s home?‑‑‑Correct, yes.
And you also took other computer material ‑ ‑ ‑?‑‑‑Yes, discs.
‑ ‑ ‑ including discs to your parents’ home after you were told ‑ ‑ ‑?‑‑‑Correct.
‑ ‑ ‑ that the police had been advised of your crime?‑‑‑Yes.
And you did that so that those items would not be present in the home should the police come there looking for computer devices?‑‑‑That’s correct.
Because you didn’t want them looking at them?‑‑‑No.
I’m going to suggest to you the only feasible explanation for you reacting in that way is because there was other material held on that computer that you knew – well, that you didn’t want the police to see?‑‑‑Correct, yes.
The Father plainly agrees that the only feasible explanation for his actions was that there was other material held on that computer that he did not want the police to see. Whilst the Father is to be given credit for his honesty in making this admission, it also enhances the risks that are sought to be assessed and managed as part of the present proceedings. The Court is left to infer that there was other material that would have exposed the Father to criminal liability but the Court does not know whether this includes recordings of adults, minors or any other pornographic or inappropriate material. The Father could have sought to explain this in re-examination, or in some other way, but no attempt was made. In the circumstances, all the Court can do is to draw an inference adverse to the Father and to take this into account in assessing the risk to X.
Later in cross-examination, the Father acknowledged that his mental health was an issue that the Court would need to consider. He agreed that he had nowhere mentioned in his evidence that he had previously been diagnosed with depression, social anxiety, mixed anxiety and a depressive disorder. He accepted that by not mentioning these matters, it was possible that he would mislead the Court.
In cross-examination by Mr Anderson, the Father accepted that he probably misled the Family Consultant by asserting that he neither watched pornographic films nor had an interest in these materials. He acknowledged that he had told Ms S that in 2004 he had made a homemade porn movie which he liked to watch but that he got rid of it due to his partner at the time. He accepted that he had said this and done this but insisted it was a one off. He tried to rationalise it by saying that whilst he did say porn movie, no sex was involved, though he accepted that he and his partner at the time were naked as they were filming.
The Father’s evidence is quite disconcerting. At one level, he deserves credit for answering the questions put to him in cross-examination honestly, even if the evidence was damaging, as it indeed was. But the fact is that he was subjected to a rigorous forensic scrutiny of his past actions and he was confronted with evidence plainly inconsistent to what he had told both the Court at the time of his criminal offence, the Court today, as well as the Family Consultant.
The Father’s evidence about the criminal conviction and the circumstances pertaining to it is plainly unreliable. He was willing to mislead the police and the Court before whom he was dealt with for the criminal charges. He was willing to mislead Ms S, who prepared his pre-sentence report, Dr D, his own psychologist and Ms C, the Family Consultant. He obfuscated and minimised not just what he did but the consequences of it.
In the circumstances, the risk of the Father re-offending with or in the presence of X, simply cannot be discounted. The Mother’s concerns about the Father have a solid foundation. If he cannot be relied on as an accurate historian of past events, then neither can his representations about the future be accepted.
The Court finds there is an unacceptable risk of harm to X if she were to spend unsupervised time with her father. The matter does go further, however, because this risk of harm also reflects on his parenting capacity, which is related to the nature of his relationship with X. The Father’s belief that his time with X could be unsupervised, either in the short or in the medium term, is plainly misplaced.
The ultimate position adopted by the Mother and Independent Children’s Lawyer, that any ongoing contact needs to be supervised for the foreseeable future is an adequate and proportionate response to the risk issues presented by the Father. Again, the Court wishes to emphasise the cumulative effect of all of these matters goes not just to the question of supervision of the Father’s time but also as to the frequency of X’s time with him and the sort of relationship between father and child that might realistically be achieved as a result of orders that can be made in this case.
To the extent that the Father’s case suggested that supervision could be provided by other than an independent professional agency, the Court does not accept this. His mother, Ms E, is hardly an independent person and her own evidence clearly demonstrated her alignment with the Father and her lack of knowledge about what actually happened in past events. If there is to be supervision of the Father’s time, it must be carried out by an independent and professional agency. This, of course, limits the options both in terms of the duration and frequency of X’s time with her father.
To the extent, however, that the Mother’s case was based on there being a risk of harm to X arising out of the Father’s family violence perpetrated to the Mother, the evidence does not support such a finding. The Mother’s case, at its very highest in this regard, is that there was family violence as defined in the Act between the Father and the Mother to which X might have been exposed, though this is quite unlikely given the chronology of events in this family.
In any event, there is no evidence of family violence in the post-separation period. The Mother certainly experienced the Father as being controlling and manipulative. Indeed, his own admissions about the criminal acts he perpetrated and his subsequent manipulation of those events is plain testament to his capacity to be manipulative and controlling. It is not a matter of risk to X, however, but does demonstrate the limitations in the Father’s parenting capacity in terms of meeting the needs of X, as well as reflecting a very poor attitude to her and to the responsibilities of parenthood.

Other Relevant Factors under Section 60CC

Whilst the Court acknowledges that this case will largely be determined by reference to the issues that have been discussed so far in these reasons for judgment, there are a number of factors that assume secondary importance. It is hard to understand, for example, why the Father did not take a greater interest in aspects of X’s life, even during the period when he was spending supervised time with her. He seemed quite content to adopt a passive role either expressly or inferentially accepting the proposition that the Mother would know best and would act in X’s best interests. Moreover, it is hard to understand why the Father did not take advantage to the full extent possible of the orders made for him to spend time with X each weekend, rather than the alternate weekend contact that he has been having since October 2015, by his own choice.
The Father accepted that the nature of his relationship with the Mother was one where trust was absent and communication largely non-existent. He seemed to accept, therefore, that whilst he sought an order for equal shared parental responsibility, at no stage in X’s life had there been any consultation or communication between them pertaining to X’s life. Again, he seemed either expressly or implicitly to accept the Mother’s judgment about matters pertaining to her.
The Father’s lack of insight was manifest in so many ways. His multiple proposals at different times for unsupervised time blindly ignored the reality of his very tenuous relationship with his daughter. It was reflective of an insistence on his rights as opposed to X’s needs. He himself agreed that there were times when he was very selfish and self-absorbed. The inherent limitations in the Father’s capacity to meet X’s physical and emotional needs is sometimes achingly apparent in the evidence about his interactions with her. He means well. There can be no doubt he loves X. To borrow the analogy used by Ms C, he is like a radio which is not quite properly tuned to a radio station, so that whilst the intent is clear, his ability to actually communicate and to relate is distorted by static and incapacity.
It is hard to criticise the Mother for any aspect of her parenting on the evidence before the Court.
To make the change proposed by the Father would be to make a change that is plainly too great for X in the circumstances of the case.

Parental Responsibility

The Father’s insistence on proposing equal shared parental responsibility was plainly misconceived. Firstly, his lack of involvement in X’s life hitherto and the chronic inability to communicate let alone to reach agreement with the Mother about anything pertaining to X would suggest that the statutory presumption is rebutted. In any event, the evidence about risk of harm or abuse to the child also strongly suggests that the presumption should not apply. An order for sole parental responsibility is really the only viable order to make on the facts of this case.

What Order for Contact is in X's Best Interests?

In many respects this is the most difficult aspect of the case. It is common ground that X should continue to have some form of relationship with her father, with contact visits being the most realistic way of seeking to achieve that. The evidence indicates, for the reasons stated above, that the contact must be supervised. This creates inherent limitations. For example, it would have to be at the Father’s own expense because the Mother is not working. The supervisors need, for the reasons stated above, to be both independent and professional. The reality is that community-based organisations such as CatholicCare here in (omitted) are not able to provide ongoing regular supervised contact and there is a well-recognised policy basis for not making final orders in this regard. The Father seems to have lost any trust he had in CatholicCare by not using the services available there, even when he had an order to that effect. It is unknown whether the Father would be prepared to pay the cost of regular, ongoing, supervised contact by an independent professional service on a regular basis.
The Mother frankly recognises in her evidence that she had great difficulty in formulating a final proposal. This is reflected in the difference between what she initially proposed to the Court and what her final minute of order was. One may well understand that the Mother’s proposal evolved as the evidence unfolded and particularly relating to the nature and extent of the Father’s misleading the Court about what actually happened.
The Father’s proposal may be disposed of quite shortly – it is inconsistent with the evidence before the Court almost in every respect. His mother is not an appropriate supervisor given the facts of the case. It is highly likely that she knows but a fraction of the truth about the Father’s offences.
The difficulty with the Mother and Independent Children’s Lawyer’s proposal is that it was formulated after the Family Consultant had given her evidence and so there was no opportunity to seek her views about that. The Court is satisfied that the alternative of recognition contact was in fact put to Ms C but she did not believe it was appropriate on the material before her. The Court, of course, now has the totality of the evidence before it and both the Mother and Independent Children’s Lawyer ask the Court to make what is in effect, an order for recognition contact only.
The cumulative effect of the risk of harm issues in this case, the Father’s tenuous relationship with X and the real concerns that the Court has about the Father’s ability to develop the parenting skills that would be required to address the relationship issues, all would justify the sort of order proposed by the Mother and the Independent Children’s Lawyer, as being orders in X’s best interests. That conclusion becomes compelling when practical considerations are taken into account. These have been discussed above.
The only realistic outcome for X is that if her father can pay for the supervised contact through a professional and independent service and in all likelihood this means a frequency of 4, or at most 6, times per year. The Court believes that it is in X’s best interests that the visits be 4 times annually. This would mean that, ideally, the visits would not be more than 3 months apart from each other. As X grows older, it will be easier for her to keep the memory of her father in her mind and hopefully look forward to the fun occasions that they can spend together.
Even though X and her father’s relationship is starting from a low base, there is some reason to be hopeful about building on that relationship in the future. The Father may well gain further insight and seek professional assistance to develop his parenting skills which would ultimately be to X’s benefit. The 4 visits a year will, hopefully, be something that the Father is able to reasonably afford in terms of the costs of supervision.
The 4 visits a year should not be too difficult a burden for the Mother to sustain. The Court accepts, it will be quite a change for X to only see her father once every 3 months, instead of every 2 weeks but the nature of their relationship at the moment is not such that would contraindicate making this a change for the longer term benefit. Doing the best the Court can it believes an order for sole parental responsibility, that X live with her mother and spend supervised time with her father 4 times each year would be in X’s best interests.
The orders will be in accordance with the Independent Children’s Lawyer’s minute of order. The presumption of equal shared parental responsibility having been rebutted, there is no need for the Court to consider equal time or substantial and significant time. In any event, neither is in X’s best interests or is reasonably practicable.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 27 July 2016

Schedule 1

The Proposed Minute of Order by the Father

APPLICANT FATHER’S PROPOSED MINUTE OF ORDER

IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG File No. WOC984 of 2013

BETWEEN MR MARRIOTT

Applicant

AND MS DRAPER

Respondent

AND INDEPENDENT CHILDREN'S LAWYER

PROPOSED ORDERS:

The parties to have equal parental responsibility for the child X born (omitted) 2012.
The child to live with the Mother.
The child to spend time with the Father and communicate with him as follows:
3.1On each Saturday or Sunday as agreed between the parties but failing agreement each Saturday;
3.1.1Until 1 October 2016, from 10am to 1pm, supervised by Ms E;
3.1.2Thereafter until X attends school, from 9am to 3pm;
3.1.3Once X attends school, for 6 months from 9am Saturday to 2pm Sunday, each second weekend and 9am to 5pm each other Saturday;
3.1.4Thereafter each second weekend from after school Friday to 5pm Sunday with collection to take place from school.
3.2During the week as follows:
3.2.1For one hour each Wednesday from 5pm to 6pm until 1 October 2016, supervised by Ms E;
3.2.2From 5pm to 7pm thereafter
3.3On Christmas Day:
3.3.12015 and 2016 for 4 hours as agreed between the parties but failing agreement, from 12noon to 4pm, with Christmas Day 2015 supervised by Ms E;
3.3.2From 2017 onwards, from 12noon Christmas Day to 12noon Boxing Day.
3.4Each Father’s Day, 2016 and onwards, unless covered by the above orders, from 9am to 5pm
3.5From 2018 for one half of each school holiday period.
3.6Such other times as shall be agreed upon between the parties from time to time.
3.7The Father at liberty to telephone X twice per week between 5pm and 6pm on a Monday and Friday with the Mother to facilitate X receiving such phone calls.

3.8 Changeover to take place at (omitted) McDonalds.

Schedule 2

The Minute of Proposed Order by the Mother and Independent Children’s Lawyer

FAMILY LAW ACT 1975

IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY File No: WOC984/2013

BETWEEN:

MR MARRIOTT
(Applicant Father)

AND:

MS DRAPER
(Respondent Mother)

AND:

THE INDEPENDENT CHILDREN’S LAWYER

MINUTE OF ORDER
SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER

PARENTAL RESPONSIBILITY

That the Mother have sole parental responsibility of the child X born (omitted) 2012.

LIVING ARRANGEMENTS

That the child live with the Mother.

SPENDING TIME ARRANGEMENTS

That the child spend time with the father as agreed in writing, or otherwise, failing agreement, on four occasions each year, at such times and days as agreed to between the parties or otherwise, failing agreement, the Saturday immediately following the child’s birthday, Easter, Father’s Day and Christmas, for a period of not less than 3 hours, and on each occasion, such time shall be supervised by (omitted) Supervised Contact Services, CatholicCare Supervised Contact and Changeover Centre, (omitted), or Care (omitted), (omitted).

For the purposes of the time the child spends with the father pursuant to Order 3, that the Father be responsible for meeting the costs of supervision.

For the purposes of Order 3, the Mother shall email the Father, at least thirty (30) days prior to any visit, and nominate the day, time and a location for the visit and the Father is required to confirm in writing, within fourteen (14) days thereafter, that he will attend those visits.

That any time the child spends with the father shall take place in a public place.

AUTHORITY

These Orders operate as the authority of the Mother, for the Father to obtain information he may seek from any medical practitioner as to prognosis, diagnosis and treatment rendered or educational service provider, copies of school reports and general information about the child’s progress, in relation to the child.

PARENTAL COMMUNICATION

That the mother notify the father, of any decisions she makes in the exercise of her parental responsibility within 30 days of such decision occurring, by email.

That, for the purpose of the parents communicating in respect of the time the child spends with the father, such communication is to occur by email, unless otherwise agreed.

That each parent keep the other informed of their email address, and of any change to such email address, within 14 days of any change occurring.

RESTRAINTS

That each parent be restrained from denigrating the other parent or any member of that parent’s household or family in the presence or hearing of the child, and shall immediately remove the child from the presence of any other person who does so.

That the Father be restrained from contacting or approaching the Mother and the child by any means whatsoever except for the purpose of implementing these Orders or as otherwise agreed by the mother in writing (including via email or SMS in an emergency).

That the father be restrained from attending any school the child attends EXCEPT with the express consent of the mother, in writing.

That the father be restrained from photographing or videoing the child by any means PROVIDED THAT, this Order shall not prevent any person supervising the time the child spends with the father taking a photograph of the child and/or the father, for the father to retain such photograph.

SPECIFIC ISSUES

Nothing in these Orders shall prevent the father from:
a.Providing a gift to the child; or
b.Bringing not more than two other paternal family members to attend;
when spending time with the child PROVIDED that the father has first obtained the mother’s consent.

PASSPORT

16.That the mother be at liberty to apply for the issue and/ or renewal of an Australian Passport for the child, without the signature or consent of the father.

Dated: 3 June 2016

HELEN ELIZABETH VOLK

INDEPENDENT CHILDREN’S LAWYER

[2016] FCCA 1677

27 July 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Injunction

Consent

Remedies